**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 )

**SECOND REPORT AND ORDER AND THIRD**

**NOTICE OF PROPOSED RULE MAKING**

Comment Date: December 20, 2002

Reply Comment Date: January 6, 2003

**Adopted:** November 7, 2002 **Released:** November 20, 2002

By the Commission: Chairman Powell, Commissioners Abernathy, Copps, and
Martin issuing separate statements.

TABLE OF CONTENTS

Paragraph

I. INTRODUCTION 1

II\. BACKGROUND 2

III\. SUMMARY 13

IV\. DISCUSSION 18

A.   Statutory Authority for EEO Program

> Requirements and Anti-Discrimination Rules 18
>
> 1\. EEO Rules Applicable to Multichannel
>
> Video Programming Distributors
> ......................................... 18
>
> 2\. EEO Rules Applicable to Broadcasters 21

B. Broadcast and MVPD EEO Rules, Policies, and Forms 46

1\. Anti-Discrimination Provisions 46

2\. Broadcast EEO Program Requirements 52

3\. MVPD EEO Program Requirements 175

C. Constitutional Issues 179

V. THIRD NOTICE OF PROPOSED RULE MAKING 182

VI\. CONCLUSION 183

VII\. PROCEDURAL MATTERS AND ORDERING CLAUSES 184

APPENDIX A: LIST OF COMMENTERS

APPENDIX B: FINAL REGULATORY FLEXIBILITY ANALYSIS

APPENDIX C: RULES

APPENDIX D: FORMS

APPENDIX E: INITIAL REGULATORY FLEXIBILITY ANALYSIS

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

1.  In this *Second Report and Order and Third Notice of Proposed Rule
    Making*, we adopt a new broadcast equal employment opportunity
    ("EEO") Rule in response to the decision of the U.S. Court of
    Appeals for the District of Columbia Circuit in *MD/DC/DE
    Broadcasters Association v. FCC*, 236 F.3d 13, *rehearing den.* 253
    F.3d 732 (D.C. Cir. 2001), *cert. denied*, 122 S.Ct. 920 (2002)
    ("*Association*"). In addition, we amend our EEO rules and policies
    applicable to cable operators, and other multichannel video
    programming distributors ("MVPDs"), to conform them, as much as
    possible, to the broadcast EEO Rule.[^1] The new broadcast EEO Rule
    and modified EEO rules for MVPDs, adopted herein, emphasize outreach
    in recruitment to all qualified job candidates and ban
    discrimination on the basis of race, color, religion, national
    origin or gender. We are also issuing a *Third Notice of Proposed
    Rule Making* requesting comment as to the applicability of our rules
    with respect to part-time employees.

    **II. BACKGROUND**

2.  We have administered regulations governing the EEO responsibilities
    of broadcast licensees since 1969,[^2] and of cable television
    operators since 1972.[^3] Our responsibilities in this area were
    codified with respect to cable television operators in 1984.[^4]
    They were further codified with respect to television broadcast
    licensees and extended to other MVPDs in 1992.[^5] In 1998, however,
    the U.S. Court of Appeals for the District of Columbia Circuit held
    that the Commission's EEO program requirements for broadcasters were
    unconstitutional in *Lutheran Church-Missouri Synod v. FCC*.[^6]

3.  In *Lutheran Church*, the court focused on the Commis­sion's
    "pro­cessing guide­lines disclosing the criteria it used to select
    stations for in-depth EEO review when their licenses came up for
    renewal."[^7] The court concluded that because "\[n\]o rational firm
    -- particularly one holding a government-issued license -- welcomes
    a govern­ment audit," the processing guideline "induces an employer
    to hire with an eye toward meeting the numerical target."[^8] The
    Court thus con­cluded that the EEO program requirements were
    unconstitutional because they "pressure -- even if they do not
    explicitly direct or require -- sta­tions to make race-based hiring
    decisions."[^9] The Court made clear that "\[i\]f the regulations
    merely required stations to implement racially neutral recruiting
    and hiring pro­grams, the equal protection guarantee would not be
    implicated."[^10] And it reite­rated in response to the government's
    rehearing petition that it had not held that a regulation
    "encourag­ing broad outreach to, as opposed to the actual hiring of,
    a particular race would neces­sarily trig­ger strict scrutiny."[^11]

4.  In 1998, we issued a *Notice of Proposed Rule Making*[^12] for the
    purpose of adopting EEO rules for broadcast licensees and MVPDs
    consistent with the Court's decision in *Lutheran Church*. In 2000,
    we adopted new EEO program requirements for broadcasters.[^13]
    Substantially the same program requirements were applied to MVPDs.
    The Commission explained that the new rules required more "than
    merely refraining from dis­­crimination." They also required
    broadcasters and MVPDs "to reach out in recruiting new employees
    beyond the confines of their circle of business and social contacts
    to all sectors of their communities \[because\] ... repeated hiring
    without broad outreach may unfairly exclude minority and women job
    candidates ...." The Commission con­cluded that non­discrimination in
    hiring was not enough when not all potential applicants have had a
    fair opportunity to apply. "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 recruitment and hiring pro­cess."[^14]

5.  The new rule contained two primary require­ments -- a prohibition on
    discrimination based on race, color, religion, national origin or
    gender in hiring, and a require­ment that broad­casters reach out in
    recruiting new emplo­yees to ensure that all qualified individuals
    had an oppor­tunity to apply for and be considered as job candidates.
    The core of the recruitment require­ment was that broadcasters widely
    disseminate infor­mation con­cerning all job vacancies. The Commis­sion
    con­cluded that this basic require­ment "is essential to meaningful
    outreach."[^15] The Commis­sion left it largely to broad­casters'
    discretion concerning how they would fulfill this requirement, so
    long as their procedures were sufficient to ensure wide
    dissemination of informa­tion about all job openings to the entire
    com­munity.

6.  In addition to the basic requirement of wide dissemination of
    information concerning job openings, the new rule provided broadcast
    licensees with two recruitment options. Under "Option A," they were
    required to undertake two types of supplemental recruitment
    mea­sures. The first measure required licensees to provide
    notifica­tion of job vacancies to any recruitment organization that
    requested such notice from the broadcaster.[^16] The second
    supple­mental mea­sure under Option A required broadcasters to
    participate in additional recruitment activities beyond the
    traditional recruitment that occurs with individual vacancies. These
    additional measures were to be selected from an open-ended menu of
    types of activities that included: job fairs, job banks, scholarship
    programs, and com­munity events related to employment oppor­tunities
    in the industry, among others.[^17] Broadcasters were permitted to
    comply with the supplemental requirement by participating in
    activities other than the listed ones so long as they were designed
    to dissemi­nate infor­mation about employment opportunities to
    candidates who might otherwise not learn of them.[^18] Broadcasters
    who selected Option A were required to maintain, but not routinely
    submit to the Commission, records docu­ment­ing their compliance with
    the wide dissemination and supple­mental recruitment require­ments.
    They were not required to maintain any data on the race, ethnicity
    or gender of applicants, interviewees or individuals they
    hired.[^19]

7.  In response to commenters who urged the Commission to provide
    greater recruiting flexibility, the Commis­sion adopted an "Option B"
    for recruitment that permitted licensees to forego the sup­ple­­mental
    recruitment measures required under Option A "and to design their
    own outreach pro­gram to suit their needs, as long as they can
    demonstrate that their program is inclusive, *i.e.*, that it widely
    disseminates job vacancies throughout the local community."[^20] A
    broadcaster who chose this option and designed its own recruitment
    program was required to track the recruitment sources, gender, and
    race/ethnicity of its applicant pools so that the broadcaster, the
    public and the Commission could evaluate the effectiveness of the
    program."[^21] The Commission emphasized that "there is no
    requirement that the composition of applicant pools be proportionate
    to the compo­sition of the local work force," but that "few or no
    females or minorities in a broadcaster's appli­cant pools may be one
    indica­tion (and only one indication) that the station's outreach
    efforts are not reach­ing the entire com­munity."[^22]

8.  In *Association*, the court rejected statutory challenges to the new
    EEO rule and held that the rule was not arbitrary and capricious. It
    found, first, that the contention that the rule relied on the goal
    of promoting programming diversity -- the legitimacy of which had
    been questioned in *Lutheran Church* -- was "beside the point"
    because the Commission had made clear "that its primary and
    assertedly sufficient goal in issuing the EEO rule was to prevent
    invidious discrimination."[^23] It found nothing arbitrary or
    capricious in the Commission's pursuit of that goal. Second, the
    court found unsupported the claim that, because the new rule
    allegedly increased the regulatory burden imposed on stations, it
    was arbitrary and capricious. [^24]

9.  The court held, however, that Option B of the rule was subject to
    strict scrutiny because those broadcasters who elected Option B were
    required to report the race and sex of each job applicant. The court
    reasoned that this requirement would pressure broadcasters to focus
    their recruitment efforts on minorities and women because the FCC
    might investigate them if their recruitment efforts attracted few or
    no minorities or women. The court concluded that the EEO rule could
    not withstand strict scrutiny because, even if there were a
    compelling government interest in preventing discrimination -- an
    issue the court did not resolve -- the rule was not narrowly
    tailored to further that interest.[^25] Therefore, it held that
    Option B was unconstitutional under the equal protection component
    of the Due Process Clause of the Fifth Amendment.[^26]

10. The court found no constitutional defect in recruitment Option A of
    the EEO rule. Since Option A did not require broadcasters to report
    the race or sex of job applicants or interviewees, and allowed them
    to select supplemental recruitment measures that do not "place
    special emphasis upon the presence of women and minorities in the
    target audience," it held that broadcasters were not "meaningfully
    pressured under Option A to recruit women and minorities."[^27]
    Although the court found only Option B unconstitutional, it held
    that Option B could not be severed from the rest of the EEO rule.
    Accordingly, the court vacated the entire rule.

11. The Commission filed for hearing and rehearing *en banc*, arguing
    that Option B was not essential to achieving its goal of ensuring
    that broadcasters engage in broad outreach in recruiting new
    employees and that it had made plain its intent that Option B be
    severable. The court denied rehearing.[^28] However, it noted that
    the Commission was free, in a new rulemaking proceeding, to adopt
    other EEO measures that would "accommodate the concerns \[the
    Commission\] expressed about broadcasters\' need for flexibility in
    general and about the burden Option A would impose upon broadcasters
    in small markets in particular" or to "change its goals."[^29]

12. We issued the *Second Notice of Proposed Rulemaking* ("*Second
    NPRM*")[^30] to request public comment on the adoption of new
    broadcast and MVPD EEO rules consistent with *Association*. An *En
    Banc* open hearing on the proposed rules was held before the full
    Commission on June 24, 2002. Having reviewed the suggestions
    contained in the comments submitted,[^31] both in writing and at the
    *En Banc* hearing, we are adopting new EEO rules that consist
    primarily of the elements of our former rules that the Court upheld
    as constitutional in *Association*, with modifications.

    **III. SUMMARY**

13. In this order, we adopt new outreach requirements applicable to
    broadcast and MVPDs. We are also retaining the nondiscrimination
    rules applicable to broadcasters and MVPDs.

14. The following is a summary of the three-pronged outreach requirement
    we are adopting as it relates to broadcasters:

    Prong 1: widely disseminate information concerning each full-time
    (30 hours or more) job vacancy, except for vacancies filled in
    exigent circumstances;

    Prong 2: provide notice of each full-time job vacancy to recruitment
    organizations that have requested such notice; and

    Prong 3: complete two (for broadcast employment units with five to
    ten full-time employees or that are located in smaller markets) or
    four (for employment units with more than ten full-time employees
    located in larger markets) longer-term recruitment initiatives
    within a two-year period.

    The following is a summary of recordkeeping and reporting
    requirements:

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(a) collect, but not routinely submit to the Commission: (i) listings of
    all full-time job vacancies filled by the station employment unit,
    identified by job title; (ii) for each such vacancy, the recruitment
    sources used to fill the vacancy (including, if applicable,
    organizations entitled to notification, which should be separately
    identified), identified by name, address, contact person and
    telephone number; (iii) dated copies of all advertisements,
    bulletins, letters, faxes, e-mails, or other communications
    announcing vacancies; and (iv) documentation necessary to
    demonstrate performance of the Prong 3 menu options, *e.g*., job
    fairs, mentoring programs; (v) the total number of interviewees for
    each vacancy and the referral source for each interviewee; and (vi)
    the date each job was filled and the recruitment source that
    referred the hiree.

(b) place in the station public file annually a report including the
    following: (i) a list of all full-time vacancies filled during the
    preceding year, identified by job title; (ii) recruitment source(s)
    used to fill those vacancies (including organizations entitled to
    notification of vacancies pursuant to Prong 2), including the
    address, contact person, and telephone number of each source; (iii)
    a list of the recruitment sources that referred the people hired for
    each full-time vacancy; (iv) data reflecting the total number of
    persons interviewed for full-time vacancies during the preceding
    year and the total number of interviewees referred by each
    recruitment source; and (v) a list and brief description of Prong 3
    menu options implemented during the preceding year.

(c) submit the station's EEO public file report to the Commission as
    part of the renewal application and midway through the license term
    for the Commission's mid-term review for those stations subject to
    mid-term review (television stations with five or more full-time
    employees and radio stations with more than ten full-time
    employees). EEO public file reports for the preceding two year
    period will be required because broadcasters have two years in which
    to complete the prong 3 menu options. Broadcasters must also post
    the current EEO public file report on their web site, if they have
    one.

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15. The same requirements will apply to MVPDs, except as necessary to
    comply with different statutory requirements. For example, Section
    634 of the Communications Act of 1934, as amended ("Communications
    Act")[^32] requires that MVPDs file reports on an annual basis
    containing information specified in the statute. The Commission is
    also required to certify that MVPD employment units are in
    compliance with the EEO requirements on an annual basis.[^33]
    Accordingly, to comply with the Prong 3 requirements, MVPD
    employment units with six to ten full-time employees and employment
    units located in smaller markets will be required to undertake one
    recruitment initiative each year and larger employment units located
    in larger markets two recruitment initiatives per year. MVPD
    employment units are not subject to a renewal process at the
    Commission. Pursuant to Section 634((e)(2) of the Communications
    Act, however, the Commission is required to conduct a more thorough
    review of each cable employment unit's EEO compliance every five
    years. Hence, MVPDs with six or more full-time employees will submit
    a copy of their most recent EEO public inspection file report to the
    Commission every five years.

16. The Commission has implemented the MVPD annual reporting requirement
    under Section 634 by FCC Forms 395-A (cable operators) and 395-M
    (other MVPDs). We will create a new Form 396-C for all MVPDs that
    will encompass the same information concerning the unit's EEO
    outreach efforts that was formerly required in FCC Forms 395-A and
    395-M. The prior forms were also used to collect data concerning the
    race/ethnicity and gender of the unit's workforce. The form we are
    adopting today will not encompass such data because, as indicated
    below, we will defer action on the collection of workforce data.

17. We are not acting at this time on issues raised in the *Second NPRM*
    concerning the broadcast annual employment report (FCC Form 395-B),
    which has in the past been used to collect data concerning the
    workforces of broadcast employment units, including data concerning
    the race/ethnicity and gender of those workforces. We are similarly
    not acting on a comparable form for MVPDs. The Office of Management
    and Budget ("OMB") adopted new standards for classifying data on
    race and ethnicity in 1997 that must be incorporated in any such
    forms beginning in 2003.[^34] We must incorporate these new
    standards in our future forms.[^35] In addition, a party has raised
    issues concerning the collection and processing of the forms.[^36]
    Because the employment reports are filed on September 30 of each
    year, the next reports would not be due earlier than September
    30, 2003. We expect the forms to be completed by this deadline.
    Accordingly, there is no urgency in resolving issues relating to the
    data collection. Conversely, there is no need to delay adopting new
    EEO rules. The data collected in the employment reports will be used
    only to compile trend reports and report to Congress.[^37] It will
    not be used to determine compliance with the EEO rules that we adopt
    today.[^38] Accordingly, we will defer action on issues relating to
    the broadcast and MVPD workforce data collection requirements and
    address them in a future report and order.

    **IV. DISCUSSION**

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A.  **Statutory Authority for EEO Program Requirements and
    Anti-Discrimination Rules**

> 1\. [EEO Rules Applicable to Multichannel Video Programming
> Distributors]{.underline}

18. The Commission is explicitly authorized by Section 634 of the
    Communications Act to adopt and enforce the MVPD EEO rules.[^39]
    Indeed, Section 634 requires us to enforce EEO rules for MVPDs. The
    court did not address the validity of our MVPD EEO rules in either
    the *Lutheran Church* or *Association* decisions. Nevertheless,
    because certain provisions in the MVPD EEO rules are similar to
    those provisions in the broadcast EEO Rule found to be
    unconstitutional in *Association*, we are revising our MVPD EEO
    rules so that they comply with the court's decision.

19. Although the Commission is required by Section 634 to enforce EEO
    Rules for the MVPD industry, Congress built into Section 634
    flexibility by allowing the Commission to implement MVPD EEO rules
    by rulemaking rather than simply prescribing MVPD EEO requirements
    by statute; by stating in Section 634(d)(2) that the "rules shall
    specify the terms under which" an entity shall take the actions
    specified in that section;[^40] and by providing in Section
    634(d)(4) that the Commission may amend the MVPD EEO rules "from
    time to time to the extent necessary to carry out the provisions of
    this section." Our rulemaking authority, particularly under Sections
    634(d)(2) and 634(d)(4), permits us to adopt new, race-neutral
    outreach requirements and to revise the FCC Forms filed by MVPDs to
    make them consistent with our modified broadcast EEO rules. None of
    the commenting parties disputes that Section 634 explicitly
    authorizes the Commission to adopt and modify our MVPD EEO
    regulations to advance congressional goals identified in the
    statute, and two parties filed comments agreeing that we have such
    statutory authority.[^41]

20. Additionally, Section 634(d)(2) obligates the Commission to
    implement the listed requirements only "to the extent possible,"
    consistent with other conflicting requirements or limitations. The
    court's decision in *Association* delineates constitutional
    limitations with which we must reconcile the MVPD EEO rules. We
    believe that Section 634(d)(2) permits the Commission to eliminate
    those provisions of the MVPD EEO rules that are similar to those
    struck down by the court in *Association* because it is not
    "possible" for the Commission to enforce a provision that a court
    has found unconstitutional. Accordingly, we modify the MVPD EEO
    rules in this *Second Report and Order and Third Notice of Proposed
    Rule Making* to remove provisions similar to those found
    unconstitutional in *Association*. We also revise the forms filed by
    MVPDs to conform them with our modified rules.

> 2\. [EEO Rules Applicable to Broadcasters]{.underline}

21. The Commission has ample statutory authority to retain its EEO
    anti-discrimination rule and, consistent with the constitutional
    standards established in *Lutheran Church* and *Association*, to
    promulgate new EEO outreach requirements for broadcasters. Congress
    explicitly authorized the Commission in 1992 to regulate the EEO
    practices of television broadcasters and has ratified the
    Commission's authority to adopt EEO rules for all broadcasters.

    a\. [Section 334: Explicit Authority to Regulate EEO Practices of
    Television Broadcasters]{.underline}

22. In 1992, Congress enacted Section 334 of the Communications Act as
    part of the Cable Television Consumer Protection and Competition Act
    of 1992.[^42] Section 334 provides that "the Commission shall not
    revise:"

> \(1\) the regulations concerning equal employment opportunity as in
> effect on September 1, 1992 (47 C.F.R. 73.2080) as such regulations
> apply to television broadcast station licensees and permittees; or
>
> \(2\) the forms used by such licensees and permittees to report
> pertinent employment data to the Commission.[^43]

23. The Conference Report accompanying this legislation indicates that
    Section 334 "codifies the Commission's equal employment opportunity
    rules, 47 C.F.R. 73.2080" for television licensees and
    permittees.[^44] Section 334 thus grants the Commission explicit
    authority to regulate the EEO practices of television broadcasters.
    Section 334 was enacted as part of Section 22 of the 1992 Cable Act,
    which sets forth Congressional findings that, despite existing FCC
    EEO rules, there were few women and minorities in managerial
    positions in the MVPD and broadcast industries; that increased
    employment of women and minorities in managerial positions will
    advance the national policy favoring diversity of viewpoints in the
    electronic media; and that rigorous enforcement of EEO rules is
    required to effectively deter racial and gender discrimination.[^45]

24. LTVG and Golden Orange argue that because Section 334 is written in
    negative terms, it does not authorize the Commission to adopt new
    outreach rules that are quite different from the 1992 EEO rules
    which the court invalidated in the Lutheran Church decision.[^46]
    Further, these commenters argue that Section 334 prohibits the
    Commission from adopting new outreach rules because those rules
    represent substantive "revisions" of the 1992 rules.[^47] Golden
    Orange asserts that Section 334 is still in effect because the court
    did not hold that statutory provision unconstitutional and that the
    Commission cannot disregard it.

25. We agree that Section 334 of the Act was not invalidated by the
    court in either the *Lutheran Church* or *Association* cases, and
    thus remains in effect. We disagree, however, on the current effect
    of that statutory provision. Section 334 prohibited the Commission
    from revising the 1992 EEO rules and the Commission did not do so.
    The *court* *invalidated* the EEO program requirements in effect in
    1992 on constitutional grounds. To the extent that the court held
    the 1992 EEO rules unconstitutional and invalidated those rules in
    *Lutheran Church*, those rules are no longer in effect and the
    Commission cannot enforce them against television broadcasters
    notwithstanding Section 334. Section 334 does *not* prohibit the
    Commission, however, from adopting *new* rules to fill the void left
    by the court's decision.

26. Golden Orange asserts that the Commission is "not free to pick and
    choose those portions of the Act which it will obey."[^48] Although
    this is of course true, the Commission is not choosing to obey only
    selected portions of the Act. After the *Lutheran Church* decision,
    the Commission is required by Section 334 to enforce against
    television broadcasters only those portions of the 1992 EEO rules
    that the court did not invalidate. The court held that "the
    Commission's EEO program requirements are unconstitutional" and
    invalidated those rules,[^49] but did not invalidate the
    nondiscrimination requirement in Section 73.2080(a) of the
    rules.[^50] Rather, it remanded the case to the Commission to
    determine whether it had authority to promulgate the
    nondiscrimination requirement.[^51] Thus, after the *Lutheran
    Church* decision, we believe that we are required by Section 334 to
    enforce Section 73.2080(a) against television broadcasters as that
    provision was in effect in 1992, but not the 1992 EEO program
    requirements, which are a nullity.

27. Although the proscriptive effect of Section 334 narrowed following
    the court's invalidation of the 1992 EEO program requirements, that
    provision still remains significant as an expression of
    Congressional intent. LTVG misses the point when it asserts that
    Section 334 provides no authority for the Commission to adopt new
    outreach requirements.[^52] Section 334 cannot be read in isolation.
    Rather, the Commission must interpret it as one component of a
    "symmetrical and coherent regulatory scheme" and "fit, if possible,
    all parts into an harmonious whole."[^53] As discussed in detail
    below, Section 334 is but one element in a series of Congressional
    enactments and statements that made it clear that the Commission's
    broad authority under Title III of the Act to regulate broadcasters
    in the public interest embraced the authority to regulate their EEO
    practices. Reading the entire statute and legislative history
    against the backdrop of the Commission's history of regulating the
    EEO practices of broadcasters and other media entities leaves no
    doubt that the Commission has authority to adopt new rules requiring
    outreach in recruitment by broadcasters -- both television and radio
    broadcasters -- as well as MVPDs. It would be perverse indeed to
    interpret a statutory provision intended by Congress to ensure that
    all broadcast and multichannel video program providers are subject
    to comparable EEO requirements in a way that would shield television
    broadcasters from EEO regulation and thus defeat the purpose of the
    statute. We therefore reject the wooden and noncontextual
    interpretation advocated by LTVG and Golden Orange.[^54]

    b\. [Congressional Ratification]{.underline}

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1.  

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28. The Commission has maintained nondiscrimination and EEO program
    requirements for broadcasters for more than 30 years. In 1968, the
    Commission concluded that the national policy against discrimination
    and the fact that broadcasters are licensed under the Communications
    Act to operate in the public interest required the Commission to
    consider allegations of employment discrimination in licensing
    broadcast stations.[^55] In 1969, the Commission adopted rules
    prohibiting broadcast stations from discriminating against any
    person in employment on the basis of race, color, religion, or
    national origin, and requiring stations to maintain a program
    designed to ensure equal opportunity in every aspect of station
    employment.[^56] It reiterated its view that discriminatory
    employment practices are incompatible with a station's obligation to
    operate in the public interest, and relied on Sections 4(i), 303,
    307, 308, 309 and 310 in adopting the new rules. Relying on its
    authority to license and regulate broadcasters in the public
    interest, the Commission has revised and extended its rules on
    numerous occasions since 1969 to*, inter alia*, refine its EEO
    program requirements, require licensees to file information
    concerning these programs and other statistical employment
    information with the Commission, and prohibit discrimination
    against, and require outreach to, women.[^57]

29. Over the last 30 years, the Commission has vigorously enforced its
    EEO requirements, sanctioning broadcast licensees in numerous cases
    for failing to comply fully with those requirements. Commission
    decisions enforcing the EEO requirements have been challenged both
    by licensees who have been sanctioned for noncompliance[^58] and by
    petitioners who believed that Commission enforcement was not
    vigorous enough.[^59] Indeed, the Court of Appeals for the D.C.
    Circuit held more than 20 years ago that the Commission *must*
    investigate broadcasters' employment practices and, in assessing the
    character qualifications of broadcast licensees, consider whether
    they have engaged in intentional employment discrimination.[^60] And
    the Supreme Court observed in the seminal case addressing the scope
    of an agency's authority to serve the "public interest" that FCC
    regulation of the employment practices of its licensees "can be
    justified as necessary to enable the FCC to satisfy its obligation
    under the Communications Act of 1934 . . . to ensure that its
    licensees' programming fairly reflects the tastes and viewpoints of
    minority groups."[^61]

30. As discussed below, during the three decades that the Commission has
    administered EEO program requirements and nondiscrimination rules,
    Congress has repeatedly expressed awareness of the rules and has not
    only acquiesced in them, but has also referred to them approvingly,
    confirming our view that the Commission has statutory authority to
    promulgate these rules. Thus, Congress has ratified the Commission's
    authority to adopt and enforce EEO requirements against broadcasters
    under its statutory mandate to license and regulate broadcasters in
    the public interest.

31. There is a substantial body of case law establishing the principle
    that congressional approval and ratification of administrative
    interpretations of statutory provisions, including those granting
    jurisdiction to regulate, can be inferred from congressional
    acquiescence in a long-standing agency policy or practice.[^62] The
    inference of ratification from congressional acquiescence in the
    Commission's exercise of authority to adopt and enforce EEO
    regulations is particularly strong. As noted above, the Commission
    has consistently taken the position over a very long period of time
    \-- 30 years \-- that it has authority under its public interest
    mandate to adopt and enforce EEO rules, and the obligations arising
    under those rules have become a major component of broadcasters'
    obligation to serve the public interest.[^63] Moreover, as noted
    above, the Commission has enforced its regulations vigorously. These
    are not obscure agency rules that could have gone unnoticed by
    Congress.

32. But congressional ratification of the Commission's authority to
    adopt EEO rules need not be inferred solely from congressional
    acquiescence in the Commission's exercise of that authority over a
    period of many years. Congress has, in two major pieces of
    legislation, *expressly* approved and ratified the Commission's
    authority to regulate the EEO practices of its broadcast licensees
    and other media entities as well.

33. In 1984, Congress enacted Section 634 of the Communications Act[^64]
    as part of the Cable Communications Policy Act of 1984.[^65]
    Although the Commission at that time already had rules in place
    regulating the EEO practices of cable operators as well as
    broadcasters, Section 634 was intended to "codif\[y\] and
    strengthen\[\] the Commission's existing equal employment
    opportunity regulations."[^66] Section 634 granted the Commission
    broad authority to adopt rules banning employment discrimination by
    cable operators and requiring cable operators to "establish,
    maintain, and execute a positive continuing program of specific
    practices designed to ensure equal opportunity in every aspect of
    its employment policies and practices ...."[^67]

34. The legislative history of Section 634 makes it unmistakably clear
    that Congress believed that the Commission already possessed
    authority to regulate the EEO practices of mass media entities \--
    broadcast as well as cable. The House Commerce Committee Report on
    the bill proposing the provisions on which Section 634 was based
    explicitly confirmed the Commission's authority to adopt EEO rules.
    The House Commerce Committee stated:

    *It is well established that the Commission has the authority to
    regulate employment practices in the communications industry*. Among
    the Commission's efforts in the equal employment opportunity (EEO)
    area over the last several years has been the enforcement of
    employment standards in the cable industry. Section 634 endorses and
    extends those standards.

    Because of the potentially large impact cable programming and other
    services provided by the cable industry has on the public, the
    employment practices of the industry have an importance greater than
    that suggested by the number of its employees. The committee
    strongly believes that *equal employment requirements are
    particularly important in the mass media area* where employment is a
    critical means of assuring that program service will be responsive
    to a public consisting of a diverse array of population groups.[^68]

35. In addition to the explicit recognition of the Commission's broad
    and "well established" authority to regulate employment practices in
    the communications industry, the legislative history of Section 634
    shows that Congress viewed the legislation as codifying,
    strengthening and building upon the Commission's pre-existing
    regulatory scheme, which it viewed as well within the Commission's
    statutory authority. For example, the House Report states that the
    legislation "codifies and strengthens the Commission's existing
    equal employment opportunity regulations."[^69] Further, it states
    that the statutory definition of the entities that are subject to
    the EEO requirements "endorses the Commission's current practice of
    reviewing compliance with EEO standards by cable systems and other
    employment units with more than 5 employees, and extends the
    applicability of EEO requirements to headquarters operations."[^70]
    Similarly, it states that the provisions specifying the requirements
    for Commission EEO rules "conform in large part to the Commission's
    required EEO program under existing regulations."[^71]

36. Additional evidence of congressional ratification can be found in
    the Cable Television Consumer Protection and Competition Act of
    1992,[^72] which further strengthened the cable EEO requirements,
    extended those requirements to all MVPDs, and codified the
    Commission's EEO program and nondiscrimination requirements as
    applied to broadcast television licensees. Moreover, Congress once
    again explicitly acknowledged the existence of the Commission's
    broadcast and cable EEO requirements and proclaimed that vigorous
    enforcement of those rules served the public interest. Congress made
    the following findings in Section 22(a) of the 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.[^73]

By extending the cable EEO requirements to every entity that provides
multiple channels of video programming, such as MMDS operators and DBS
licensees, Congress was building upon and closing the gaps in the
Commission's regulatory scheme, ensuring that *every* electronic mass
media provider would be subject to EEO regulations enforced by the
Commission.

37. As noted above, the 1992 Cable Act not only strengthened and
    extended the cable EEO requirements, it also codified the
    Commission's EEO requirements for broadcast television stations in
    Section 334 of the Act.[^74] Section 334 thus explicitly recognizes
    the existence of the Commission's broadcast EEO Rule and requires
    the Commission to keep its EEO requirements in effect for television
    broadcasters. [^75]

38. Furthermore, Section 22(g) of the 1992 Cable Act required the
    Commission to report to Congress within two years on "the
    effectiveness of \[the Commission's\] procedures, regulations,
    policies, standards, and guidelines in promoting the congressional
    policy favoring increased employment opportunity for women and
    minorities in positions of management authority." The Commission was
    required to include in that report "such legislative recommendations
    to improve equal employment opportunity in the *broadcasting and
    cable industries* as it deems necessary."[^76] Congress would not
    have directed the Commission to review the effectiveness of its
    broadcast and cable EEO policies and regulations then in effect, and
    recommend whether further legislative action was necessary, had
    Congress not believed that those policies and regulations were
    within the Commission's lawful authority.[^77] Thus, Section 22(g)
    is further evidence of Congress' affirmative approval of the
    Commission's authority to adopt equal employment opportunity
    requirements for broadcasters.[^78]

39. It is within this historical context that the Commission's statutory
    authority to regulate the EEO practices of broadcast licensees must
    be viewed. As discussed above, the Supreme Court has inferred
    congressional ratification of administrative action from "nothing
    more than silence in the face of an administrative policy."[^79]
    Here, the inference of congressional ratification rests on far
    firmer ground, including explicit statements confirming the
    Commission's authority to regulate the EEO practices of media
    companies, legislation that codified and expanded the reach of
    Commission EEO regulations, and a directive to the Commission to
    review the effectiveness of its EEO regulations and report back to
    Congress on how they are working and how they could be
    improved.[^80] Under these circumstances, the inference of
    congressional ratification is inescapable.[^81]

40. There is another compelling reason to find in the current statutory
    context that Congress has ratified our authority to regulate the EEO
    practices of broadcasters. The Supreme Court has held on numerous
    occasions that courts should interpret a statute "'as a symmetrical
    and coherent regulatory scheme' and 'fit, if possible, all parts
    into an harmonious whole.'"[^82] In interpreting statutes granting
    administrative or judicial jurisdiction, the Supreme Court has held
    specifically that any interpretation of congressional intent that
    will result in a "bizarre jurisdictional patchwork" is to be
    disfavored absent legislative history or a persuasive functional
    argument to the contrary.[^83] In this case, Congress has
    *explicitly* granted the Commission authority to regulate the EEO
    practices of television broadcasters, cable operators, and all other
    MVPDs, including such relative newcomers as DBS and MMDS
    operators.[^84] Thus, rejecting the inference of congressional
    ratification would leave us in the anomalous situation of having
    jurisdiction to regulate the EEO practices of broadcast television
    and MVPDs, but *not* radio broadcasters. There is no indication in
    the legislative history that this was Congress' intent and none of
    the broadcasters commenting in this proceeding even attempts to
    explain why Congress would have intended such a result.

41. Two parties do, however, challenge the Commission's contention that
    Congress has ratified the Commission's authority to regulate the EEO
    practices of broadcasters. StBAs asserts that "any claim that
    Congress has ratified this new rationale is unsupportable in light
    of Congressional silence on the matter since the Court of Appeals
    decisions in *Lutheran Church* and *Broadcasters*," adding that
    "Congress could have created a statutory program or mandated a new
    regulatory approach in this area -- but did not."[^85] Similarly,
    LTVG argues that "Congress cannot possibly have 'ratified' by its
    past inaction a set of 'outreach' rules that, according to the FCC,
    represents a radical departure from the FCC's entire past history
    and practice with respect to broadcast EEO regulation."[^86]

42. These comments reflect a fundamental misunderstanding of the nature
    and effect of Congressional ratification of our statutory authority.
    As explained above, the Commission since 1969 has interpreted the
    Communications Act's grant of authority to license and regulate
    broadcasters as the public interest, convenience and necessity
    require as authorizing the Commission to regulate the equal
    employment practices of broadcasters. Specifically, it has
    interpreted the statute as granting it authority to prohibit
    broadcast stations from engaging in employment discrimination and to
    require them to maintain programs designed to ensure equal
    opportunity in all aspects of station employment, including
    recruitment. It is that interpretation of the *scope of the
    Commission's statutory authority under the Communications Act* that
    Congress has ratified over the course of many years.

43. Once Congress ratified the Commission's interpretation of the scope
    of its statutory authority, as it clearly had by 1984, the
    Commission could exercise that authority by adopting new EEO rules
    to replace those held unconstitutional by the D.C. Circuit. Thus,
    Congress's later "silence" after the *Lutheran* *Church* and
    *Broadcasters* decisions is immaterial. And the fact that Congress
    did not act to "mandate" a new EEO regulatory regime is equally
    immaterial. Having already made it abundantly clear that the
    Communications Act authorized the Commission to regulate the EEO
    practices of broadcasters, there was no need for Congress either to
    mandate or once again to authorize Commission action in this
    area.[^87] Thus, the arguments of the StBAs and LTVG that Congress
    could not have ratified the Commission's authority to adopt new or
    different EEO rules have no merit.[^88]

44. For the foregoing reasons, we find that Congress has granted us
    authority to regulate the EEO practices of broadcast television and
    radio licensees. Whatever uncertainty may have existed 30 years ago
    concerning the Commission's public interest mandate and whether it
    is broad enough to authorize EEO regulation, it has now been
    resolved.

    c\. [Other Authority]{.underline}.

45. We have relied in the past on our public interest mandates to foster
    diversity of programming and diversity of ownership as additional
    sources of statutory authority for broadcast EEO rules.[^89] We
    believe that the statutory authority discussed above is ample to
    support the adoption of broadcast EEO rules in this proceeding, and
    see no need for additional sources of statutory authority.
    Therefore, we decline to address the complex and elusive issues of
    whether there is a nexus between diversity in employment and
    diversity of programming or ownership and, if so, the extent of that
    nexus.

    **B. Broadcast and MVPD EEO Rules, Policies, and Forms**

    1\. Anti-Discrimination Provisions

46. In the *Second NPRM* we proposed to retain the nondiscrimination
    provisions of our broadcast and MVPD EEO rules.[^90] We noted that
    the anti-discrimination provision of the broadcast EEO Rule[^91] was
    not challenged in *Association*. Nonetheless, in rejecting the
    contention that the unlawful Option B could be severed from the EEO
    rule, the court stated that the "entire rule" must be vacated. [^92]
    In order to avoid any confusion arising from the language in the
    court's decision, we recodify the nondiscrimination requirement.
    Nondiscrimination is an essential component of every licensee's
    obligation as a trustee of a valuable public resource. Moreover, a
    finding that a broadcaster has engaged in employment discrimination
    would raise a serious question as to its character qualifications to
    be a Commission licensee. In *Bilingual Bicultural Coalition on Mass
    Media, Inc. v. FCC*,[^93] the court stated that "\[a\] documented
    pattern of intentional discrimination would put seriously into
    question a licensee's character qualifications to remain a licensee:
    intentional discrimination almost invariably would disqualify a
    broadcaster from a position of public trusteeship."[^94] Finally, we
    are required by statute to prohibit discrimination by broadcast
    television licensees and MVPDs.[^95]

47. As proposed in the *Second NPRM*, we will retain our policy of
    generally deferring action on individual complaints of employment
    discrimination against broadcasters and MVPDs pending final action
    by the Equal Employment Opportunity Commission ("EEOC") or other
    government agencies and/or courts established to enforce
    nondiscrimination laws. We will also retain the discretion to take
    action, notwithstanding the absence of a final decision by the EEOC
    or other agency/court, where the facts of a particular case so
    warrant. As indicated in the *Report and Order*, our policy
    generally reflects the fact that Congress intended the EEOC to be
    primarily responsible for the resolution of discrimination
    complaints and our separate adjudication of such complaints could
    result in duplicative or inconsistent decisions.

48. Named State Broadcasters Associations urge that we should defer
    entirely to the EEOC or other appropriate agencies or courts
    concerning discrimination. StBas construes the *Second NPRM* as
    reflecting a proposal that only individual complaints would be
    deferred and that we would directly consider complaints alleging
    discriminatory patterns and practices.[^96] This is incorrect. We do
    not intend to exercise our discretion routinely to consider
    allegations of discrimination before an EEOC or court decision has
    been made. This will be true whether the complaints allege a single
    instance or multiple instances of discrimination or discriminatory
    patterns and practices. In the *Report and Order*, we indicated that
    any exceptions to our general policy would be decided on a
    case-by-case basis. We cited as examples that we might consider
    alleged discrimination prior to a final EEOC or court ruling, under
    certain circumstances, if there are well-supported allegations of
    discrimination made by a large number of individuals against one
    broadcast station or MVPD unit, or well-supported allegations of
    discrimination that shock the conscience or are particularly
    egregious. This does not, however, mean that we will depart from our
    general policy in every instance in which multiple allegations or
    alleged discriminatory practices are present.

49. We will also retain the proviso in our broadcast anti-discrimination
    rule that religious radio broadcasters may establish religious
    belief or affiliation as a job qualification for all station
    employees. We will also continue our policy of applying the same
    proviso to television broadcast licensees.[^97]

50. The Rule adopted by the *Report and Order* defined a "religious
    broadcaster" as "a licensee which is, or is closely affiliated with,
    a church, synagogue, or other religious entity, including a
    subsidiary of such an entity."[^98] In the *Report and Order*, we
    clarified that, in the event of a controversy, we would determine on
    a case-by-case basis whether a licensee was a religious broadcaster
    by considering such factors as whether it operates on a non-profit
    basis, whether it has a distinct religious history, whether the
    entity's articles of incorporation set forth a religious purpose,
    and whether it carried religious programming.[^99] Thus, an entity
    could, based on the totality of the circumstances, qualify as a
    "religious broadcaster" even if it operated as a for-profit entity
    or lacked an extensive religious history. National Religious
    Broadcasters ("NRB") urges that we should clarify the definition by
    indicating that a for-profit broadcaster would qualify as
    "religious" if at least 50 percent of its airtime was devoted to
    religious programming and it has either organizational documents
    reflecting a religious purpose or a distinct religious
    history.[^100] Lutheran Church---Missouri Synod ("Lutheran Church")
    urges that the interjection of a requirement for a specific percent
    of religious programming is unnecessary and could create confusion
    as to the definition of religious programming.[^101] We find no need
    to revisit this matter.[^102] We have encountered few problems
    concerning the definition of a religious broadcaster since we
    initiated this policy. Further, the adoption of a test based on a
    prescribed percentage of "religious programming" could create
    unnecessary difficulties in determining whether particular
    programming is "religious."

51. Two commenters, Doreen Vincent and John Bronikowski, have urged us
    to extend the scope of the anti-discrimination rules to encompass
    discrimination based on physical disabilities. In the *Report and
    Order*, we noted that both Congress and the Commission have taken
    steps to ensure that persons with disabilities share in the benefits
    of modern communications services and products. We also noted that
    the broad outreach requirements of the EEO rules being adopted would
    benefit all potential job applicants, including those with
    disabilities, in obtaining information about broadcast employment
    opportunities. We nonetheless found the proposals beyond the scope
    of the proceeding.[^103] We still conclude that the issue is beyond
    the scope of the proceeding. We do not have a sufficient record to
    determine the feasibility of providing further relief within the
    context of our EEO rule.

    [2. Broadcast EEO Program Requirements]{.underline}

    a\. [Rules and Policies]{.underline}

    i\. [General Considerations]{.underline}

52. Several broadcast commenters have challenged the basis for our
    adopting any EEO Rule for broadcasters. Initially, they seek to
    characterize our proposals in the *Second NPRM* as constituting
    "re-regulation."[^104] In fact, we have never "de-regulated" in this
    area; the court decisions that have invalidated various aspects of
    our EEO rules have been premised on specific legal defects found in
    our programs, not on a finding that nondiscrimination rules or
    outreach requirements are unnecessary.

53. NAB and StBAs stress that the broadcast industry has demonstrated
    its commitment to EEO, especially in the period since our Rule was
    invalidated in *Lutheran Church*. They argue that the industry has
    made meaningful EEO efforts even in the absence of a rule requiring
    them to do so and, therefore, that there is no need for an EEO
    Rule.[^105]

54. NAB cites the creation more than 25 years ago of the NAB Career
    Center, which has undertaken a number of activities designed to
    foster nondiscrimination and diversity, including conducting a job
    fair in cooperation with the Broadcast Education Association during
    the annual NAB convention. NAB also cites its maintenance of an
    Internet web site that serves as a clearinghouse for information
    concerning job openings at member stations. Furthermore, the NAB
    Educational Foundation ("NABEF") operates various programs to
    provide education, experience and training for employment in the
    broadcast industry. NABEF also makes contributions to organizations
    that support minority interns and training. NAB provides fellowships
    for professional managers, including minorities and women, to attend
    its management development programs and its Broadcast Leadership
    Training Program. NAB also notes that state associations conduct job
    fairs and maintain job web sites. NAB argues that these efforts have
    continued even in the absence of federal regulations and contends
    that they will continue irrespective of the outcome of this
    proceeding.[^106]

55. StBAs points to the creation of Internet job web sites by the
    National Alliance of State Broadcasters Associations ("NASBA"), and
    the state broadcast associations themselves, which continue to
    function notwithstanding the absence of an EEO rule. It further
    indicates that 29 state broadcast associations sponsor, co-sponsor,
    or significantly participate in job fairs. StBAs also notes that
    state associations support internship programs by providing stipends
    for student interns or directly sponsoring intern programs, and that
    five associations have provided significant support for mentoring
    programs. Nearly two-thirds of the state associations provide
    fellowships and scholarships. Also, associations in several states
    have created partnerships with local organizations in implementing
    various programs designed to promote outreach.

56. StBAs further contends that we can rely on the broadcast industry to
    engage in active recruitment without an EEO Rule because
    broadcasters have a "strong, inherent incentive" to attract a robust
    stream of qualified men and women of all racial and ethnic
    backgrounds.[^107] StBAs contends that there is no need for an EEO
    Rule to deter discrimination or to curtail discriminatory effects
    from reliance on word-of-mouth recruitment methods. It further
    contends that there is no evidence that the broadcast industry as a
    whole engages in discrimination or that specific recruiting
    practices are needed as a remedy for discrimination. StBAs also
    suggests that any regulation designed to deter discrimination must
    be limited to intentional discrimination because constitutional
    prohibitions against discrimination as well as Title VII of the
    Civil Rights Act of 1964 are limited to intentional
    discrimination.[^108]

57. First, our concern is not limited to intentional discrimination.
    Thus, it is not based on Constitutional provisions or on Title VII,
    but on the public interest standard in the Communications Act. In
    adopting the Cable Television Consumer Protection and Competition
    Act of 1992 ("Cable Act"), Congress expressly found in pertinent
    part: "rigorous enforcement of equal employment opportunity rules
    and regulations is required in order to effectively deter racial and
    gender discrimination."[^109] Congress has made it clear that the
    public interest standard is sufficiently broad to cover not only
    intentional discrimination, but also discrimination that may arise
    as a result of practices and policies that are not intentionally
    discriminatory. Further, our policy is not limited to imposing
    sanctions in response to specific past discrimination; it is also
    intended to deter discrimination in the first instance. Thus, our
    policy is designed to prevent both intentional and unintentional
    discriminatory practices in the broadcast and MVPD industries, and
    to ensure equal opportunity in employment practices, including
    recruitment.

58. Second, it is not necessary to find that the broadcast industry "as
    a whole" has engaged in discrimination in order to justify
    regulations to prevent discrimination. We do not suspect that the
    entire broadcast industry, or even most of it, engages in
    intentional or unintentional discrimination.[^110] Nonetheless,
    discrimination is so fundamentally inconsistent with the public
    interest that rules are justified to deter even the possibility of
    discrimination. Thus, the requirements we are adopting today are
    not, as characterized by StBAs, "essentially remedial."[^111] They
    are designed to prevent discrimination, not to provide a remedy
    after it occurs.

59. Third, although we commend the broadcast associations for the
    various activities detailed in their comments, they do not
    demonstrate that an EEO rule is unnecessary. In the period since
    *Lutheran Church*, we have continuously held out the possibility
    that we would adopt new rules designed to remedy the problems
    identified by the court. Indeed, for approximately nine months --
    from April 2000 to January 2001 -- we had new rules in place. Many
    of the initiatives cited by the associations may have been
    responsive to those requirements. We cannot be certain what would
    occur if we announced that we would not be adopting new rules.
    Moreover, most of the activities cited by NAB and StBAs were the
    result of association efforts.[^112] There is little evidence in the
    record as to the activities engaged in by licensees generally.
    Although we agree that broad outreach is in the long-term best
    interest of the broadcast industry, it has become apparent based on
    the record in this proceeding, that self-interest alone is not
    enough.[^113] We cannot be confident that individual licensees --
    who are the focus of our regulations -- would engage in outreach
    efforts in the absence of a rule. Indeed, the American Federation of
    Television and Radio Artists ("AFTRA"), a national labor
    organization with membership in the broadcast industry, states that
    its members have reported that broadcasters and MVPDs have reduced
    their participation in job fairs and other outreach and recruitment
    efforts since 1998.[^114]

60. Some broadcasters support the adoption of an EEO rule. Radio One,
    Inc. ("Radio One"), which is minority controlled, owns or operates
    65 radio stations and is the nation's seventh largest radio
    broadcasting company. Radio One contends that the EEO Rule is
    especially necessary in view of the recent consolidation in the
    broadcast industry. It argues that group owners are seeking to
    achieve economies of scale by "clustering" multiple stations in
    local markets. As a result of more centralized operations, it says,
    the number of quality broadcasting jobs, particularly top management
    positions, has diminished. Radio One argues that this places
    pressure on minorities and women in competing for fewer jobs in the
    marketplace where they are already underrepresented, particularly at
    the top level.[^115] The EEO Rule also was supported by Inner City
    Broadcasting Corporation (ICBC), the second largest Black owned and
    operated radio company in America.[^116] Charles Warfield, President
    and Chief Operating Officer of subsidiary ICBC Broadcast Holdings,
    Inc., cited from his own experience in attending a 1997 meeting of
    corporate executives and general managers of a 96-station group.
    Only six of the attendees were Black, and of them, only three are
    still employed in the broadcast industry; a reduction which he
    attributed to consolidation in the industry.[^117]

61. Our proposed EEO requirements also are generally supported by the
    MVPD industry. The National Cable & Telecommunications Association
    ("NCTA"), the principal trade association of the cable industry,
    generally supports the proposed EEO regulations applicable to MVPDs,
    which are comparable to those applicable to broadcasting. NCTA
    states that EEO is "the fair policy for our employees and the right
    policy for our industry."[^118] NCTA also states that there is a
    need for the EEO rules because there "must be no doubt that cable
    systems" reach out to all sectors of their communities in recruiting
    new employees so as to ensure that all qualified applicants have an
    opportunity to apply for and be considered as job candidates.[^119]
    NCTA further emphasizes that it supports the requirement to recruit
    for all vacancies so companies will offer all prospective employees
    an equal opportunity to be considered for jobs.[^120] It further
    supports the requirement to recruit widely enough so no segment of
    the community is left out.[^121]

62. Discrimination may be easy to hide and difficult to prove.[^122]
    Allegations of discrimination may never be fully litigated because a
    violator will elect to settle any litigation before it reaches the
    stage of a final judgment.[^123] It is thus impossible to quantify
    reliably the extent of actual discrimination that exists today.

63. Several commenters cite a 2001 study by the Radio-Television News
    Directors' Association ("RTNDA") and Ball State University that,
    they contend, shows that minorities and females still face
    difficulties in obtaining broadcast employment, especially in
    accessing higher level positions.[^124] According to the RTNDA
    study, women comprise 39.7 percent of the television work force and
    37.4 of the radio work force, and minorities represent 24.6 percent
    of the television and 10.7 percent of the radio work force.
    Nonetheless, only 20.2 percent of television news directors are
    women and only eight percent are minorities. Further, only 21
    percent of radio news directors are women while only 4.4 percent are
    minorities. The RTNDA study also reflects that 91.3 percent of
    television station general managers are White (8.7 percent minority)
    while 87.4 percent are male (12.6 percent female). In radio, 94.3
    percent of general managers are White (5.7 percent minority) and
    87.7 percent are male (12.3 percent female).

64. StBAs cites the RTNDA report for the proposition that minorities
    held almost a quarter of all jobs in television news and that the
    number of minorities in radio news had increased. StBAs compares
    this with newspaper journalists, of whom only 12.1 percent are
    minorities. StBAs does not otherwise address data concerning
    minority and female employment, stating that to establish a target
    level of representation for any group would amount to a quota system
    that would unlawfully deny equal protection.[^125]

65. On July 15, 2002, RTNDA released its study of the industry for
    2002.[^126] The 2002 data reflects that minorities hold 20.6 percent
    of the jobs in television news (19 percent in English language news
    rooms), down from 24.6 percent in 2001. The percentage of minorities
    in radio news was eight percent, down from 10.7 percent in 2001. The
    percentage of minority news directors rose from 2001 to 9.2 percent
    in television and 5.1 percent in radio. Minorities held 5.2 percent
    of general manager jobs in television (down from 8.7 percent
    in 2001) and 3.8 percent in radio (down from 5.7 percent in 2001).
    In 2002, women comprised 38.6 percent of the television news
    workforce (down from 39.7 percent in 2002) and 32.5 percent of the
    radio news workforce (down from 37.4 percent in 2001). The
    percentage of women news directors increased to 25.9 percent in
    television (up from 20.2 percent in 2001) and 22.3 percent in radio
    (up from 21.9 percent in 2001. Women held 13 percent of general
    manager jobs in television and 11 percent in radio.

66. The relevance of this data does not derive from any intent to
    require that the workforce presence of minorities and females match
    that of the presence of those groups in the population, as suggested
    by StBAs, or to create any preference for any group over any other.
    The data are nonetheless relevant to demonstrate the continuing need
    for broad outreach and recruitment efforts.

67. Many of the opponents of our EEO program cite language from the
    *Report and Order* that "\[o\]utreach 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 recruitment and hiring process."[^127] These
    parties contend that the broadcast workforce is not homogeneous and
    that it does not employ insular recruitment and hiring practices to
    replicate itself.[^128] The cited language was intended to explain
    why outreach in recruitment as well as a ban on discrimination is
    necessary to deter discrimination. We did not intend to suggest that
    every broadcast station has a homogeneous workforce. We recognize
    that in many significant respects the industry has become more
    diverse over the past decades. We attribute this in large measure to
    the fact that the industry has been subject to our various EEO
    requirements since 1969. As noted, StBAs adverts to the fact that,
    according to the RTNDA studies, the broadcast media have achieved a
    greater degree of diversity than the print media -- which have not
    been subject to EEO outreach requirements. Just because a particular
    station has minority employees, however, does not mean that all job
    applicants irrespective of their backgrounds will hear of job
    openings. Stations cannot rely on their employees to disseminate job
    information widely. While the discriminatory impact of insular
    recruitment practices, such as word of mouth recruitment, is
    potentially worse if the work force is homogeneous, all stations
    need to openly recruit to ensure equal opportunity and access to
    jobs. The purpose of our rules is to ensure equal opportunity and
    nondiscrimination for all prospective applicants, not to achieve the
    proportional representation of particular groups.

68. With respect to insular recruitment practices by broadcasters, StBAs
    asserts that:

    \[t\]here is also no evidence that word-of-mouth recruitment (*done
    in conjunction with other recruitment steps* such as use of the
    Internet job banks, over-the-air advertising, job fairs, etc.) is
    more extensive than in other industries, much less that it is an
    inherently discriminatory practice or has led to discriminatory
    practices by broadcasters in general.[^129]

    We agree with StBAs that word-of-mouth recruitment is not inherently
    objectionable when combined with broad outreach. As will be
    explained below, it is not our intention to prohibit the use of
    word-of-mouth recruitment, when used in conjunction with other
    public recruitment sources. Our purpose is to ensure that
    word-of-mouth recruitment practices are not the sole method of
    recruitment and that all members of the public have an opportunity
    to compete for available jobs.

69. We accordingly conclude that adoption of new outreach rules for
    broadcast and MVPDs is supported by the record in this case. The
    evidence in this proceeding demonstrates an ongoing need to deter
    discrimination and ensure equal employment opportunity in the
    broadcasting and MVPD industries. Moreover, Congress has made clear
    its intention that we should enact EEO rules for the broadcast and
    MVPD industries.

70. Finally, as noted above, our primary goal in adopting EEO program
    requirements is to ensure broad outreach in recruitment for
    broadcast and MVPD employment vacancies. We seek to do so in a
    manner that affords some flexibility to affected industries. The
    regulations we are adopting today provide sufficient flexibility.
    Entities will have broad discretion as to the type of recruitment
    sources they will use, the number of recruitment sources they will
    use, and the Prong 3 menu options they will implement. We are also
    providing that entities in smaller markets may implement fewer menu
    options than those in larger markets.

    ii\. [EEO Program and Related Provisions]{.underline}

71. In the *Second NPRM*, we proposed a three-prong EEO program
    requirement designed to ensure equal opportunity to all potential
    applicants, including all races and both genders, without infringing
    on the rights of any group. The rules were further designed to be
    flexible enough to avoid imposing an undue burden and to apply
    reasonably and effectively to broadcasters and MVPDs in differing
    circumstances.[^130] Based on our review of the comments, reply
    comments and other presentations filed in this proceeding, we adopt
    the proposed program, with some modifications.

72. **Outreach Prong 1 -- Recruitment for All Full-time Vacancies**. We
    will adopt the requirement that broadcasters recruit for all
    full-time vacancies, except in exigent circumstances. Recruitment
    for substantially all vacancies using sources designed to achieve
    broad outreach is necessary to ensure that all segments of the
    population have an equal opportunity to compete for broadcast (and
    MVPD) employment and that no segment is subjected to intentional or
    unintentional discrimination. As discussed above, Congress clearly
    intended broadcasters to be subject to outreach requirements and our
    rule is consistent with that intent.

73. NAB challenges the necessity of requiring broadcasters to recruit
    for all vacancies. NAB's argument initially relies upon the
    contention that efforts by the broadcast industry to reach out to
    potential applicants and the effectiveness of our EEO regulations
    over the past more than 30 years have enabled minorities and women
    to obtain jobs in broadcasting so that minorities and women will
    learn of available jobs without the need for broad recruitment. NAB
    also asserts that broadcasters need the discretion to design
    recruitment tactics appropriate to particular positions. Next, NAB
    asserts that the present poor economy has reduced the availability
    of broadcast jobs so that recruitment for every vacancy is
    futile.[^131]

74. We do not agree with these contentions. The effectiveness of our
    requirements in the past does not justify eliminating them now. Nor
    can we justify such a conclusion based on recent outreach efforts by
    the broadcast industry, however commendable, given that this has
    been an area under high scrutiny for some time. We can draw no
    inference from these facts; therefore, regarding the likely behavior
    of licensees in the absence of any current on proposed EEO program.
    Second, our requirements provide sufficient flexibility to design
    recruitment programs appropriate for different positions and
    circumstances, as will be discussed below. Finally, the present
    state of the economy does not justify dispensing with recruitment
    when jobs become available.

75. As an alternative to the requirement that broadcasters recruit for
    every vacancy, NAB proposes a rule whereby broadcasters would
    certify every four years that they have complied with one of three
    alternatives.[^132] First, NAB suggests that compliance with Office
    of Federal Contract Compliance Programs (\"OFCCP\") requirements
    should suffice as compliance with the Commission\'s Rule. As a
    second alternative, NAB proposes that broadcasters could achieve
    compliance by participating in a Broadcast Career Program operated
    by their state broadcast association. This refers to the model plan
    developed by the National Alliance of State Broadcast Associations
    ("NASBA") (referred to in the *Report and Order* as BEDA), which is
    attached to StBAs comments.[^133] The third alternative proposed by
    NAB is a flexible outreach program developed by the licensee. The
    proposal would allow broadcasters to choose from a \"menu\" of eight
    general (*i.e.*, not related to a specific job vacancy) and eight
    specific outreach efforts. The general outreach efforts would
    include sponsorship of, or participation in, job fairs, scholarship,
    mentoring and intern programs, training programs for existing
    employees, and industry-wide training programs designed to train
    minority students for media careers. The specific outreach efforts
    would include standard recruitment methods (such as placing
    newspaper or magazine advertisements, making on-air job
    announcements, etc.) and such methods as posting job notices on
    Internet web pages. Under NAB\'s proposal, a licensee would achieve
    compliance by using two general outreach initiatives, or one general
    and two specific outreach initiatives, or four specific outreach
    initiatives.

76. We explained in the *Report and Order* why reliance on OFCCP
    requirements as a component of our EEO Rule would be
    inappropriate.[^134] OFCCP regulations place a general
    nondiscrimination requirement on entities with federal contracts in
    excess of \$10,000.[^135] The regulations require an \"affirmative
    action compliance plan\" for employers who have 50 or more employees
    and federal contracts of \$50,000 or more.[^136] Enforcement of the
    plans is based primarily on compliance evaluations that may occur at
    the discretion of OFCCP.[^137] It would be confusing to the public
    to have a separate agency with separate requirements and enforcement
    mechanisms responsible for the EEO outreach efforts of some
    broadcasters. Moreover, adoption of this proposal would greatly
    complicate enforcement of our rules by making it necessary for us to
    consider complaints based on alleged violations of the requirements
    of another agency, or to deal with situations in which a broadcaster
    that has claimed exemption based on OFCCP compliance is later found
    by OFCCP not to be in compliance with its requirements. A
    broadcaster may, of course, claim credit for steps taken to comply
    with OFCCP requirements if they also serve to establish compliance
    with our EEO Rule. OFCCP compliance, however, does not necessarily
    establish EEO compliance for our purposes.

77. We also found NAB's proposal to base compliance on the NASBA (BEDA)
    model program inadequate.[^138] The NASBA model plan consists of a
    series of suggestions that individual state broadcast associations
    can use to develop programs for their states. However, individual
    associations are not required to follow the suggestions in the plan.
    Thus, the actual components of particular state association plans
    will vary. As we previously concluded, the existence of different
    requirements in different states would be confusing to the public
    and difficult to enforce. There also is no assurance that plans
    adopted by each state association will achieve our EEO goals.
    Moreover, we are concerned that some state associations could
    incorporate into their plans requirements that would be inconsistent
    with the Court's rulings in *Lutheran Church* and/or *Association*.
    For us to incorporate such requirements by reference into our own
    EEO requirements could raise legal or constitutional questions.

78. NAB's third option, its own plan, requires only non-vacancy-specific
    general outreach initiatives (comparable to our Prong 3 menu
    options) without recruiting for a single vacancy. Although general
    outreach initiatives have value, we do not agree that they can serve
    as an adequate substitute for vacancy-specific recruitment. Indeed,
    the general outreach initiatives in Prong 3 are designed to alert
    interested persons to employment opportunities in broadcasting and
    to enable them to acquire necessary skills. The value of such
    efforts would be seriously impaired if such persons were thereafter
    deprived of notice of actual vacancies for which they might apply.
    We accordingly do not find the NAB plan to be a credible substitute
    for vacancy-specific recruitment.

79. Unlike NAB's proposal, which could be satisfied without any
    vacancy-specific recruitment, StBAs has submitted a proposal that
    would require recruitment by means of the Internet for at least 50
    percent of a station's full-time vacancies, subject to a further
    exemption for exigent circumstances.[^139] We are unable to accept a
    proposal that exempts a certain percentage of jobs from the
    recruitment requirement because that could result in the most
    desirable jobs being filled without public recruitment. We will
    discuss StBAs' proposal relating to the use of the Internet below.

80. In the *Second NPRM*, we recognized that there might be occasional
    exigent circumstances in which recruitment may not be
    feasible.[^140] We cited as an example the need to replace
    immediately an employee who departs without notice and whose duties
    cannot be fulfilled, even briefly, by other station employees. We
    stated, however, in the *Report and Order* that we could not
    anticipate every circumstance which might justify filling a position
    without recruitment and indicated that we would rely on the good
    faith discretion of broadcasters. We nonetheless cautioned that we
    expected nonrecruited vacancies to be rare relative to the number of
    vacancies for which recruitment is conducted, because our Rule
    generally requires recruitment for every vacancy.[^141] We will
    incorporate this approach in our new rules.

81. NAB suggests that we should further clarify the circumstances in
    which this exigent circumstances exception applies because
    uncertainty in this respect could trigger allegations that a station
    violated the EEO Rule.[^142] We are unable to anticipate every
    circumstance in which the exigent circumstances exception might
    apply because it is intended to respond to emergency circumstances
    that are difficult to anticipate. Moreover, the applicability of the
    exemption may vary based on the station. Finally, the best method
    for defining the scope of the exigent circumstances policy is
    through experience based on actual cases rather than hypothetical
    circumstances.

82. NAB also cites the need for confidentiality in some circumstances so
    as not to alert an existing employee, whom the broadcaster is
    seeking to replace, or competitors as to its plans. In appropriate
    circumstances, such a situation could provide sufficient
    justification for a departure from the normal recruitment
    procedures. There are, however, recruitment sources and techniques
    (such as blind advertisements) that can sometimes be used to achieve
    a significant degree of outreach while preserving confidentiality.

83. In applying the exigent circumstances exception, we will look to the
    entirety of the licensee's recruitment efforts in assessing its
    compliance with our Rule. Our primary concern is that the licensee
    not abuse the exigent circumstances exception as a means of avoiding
    regular recruitment. In the absence of evidence of such abuse, we
    would not necessarily find a violation even if we disagreed with a
    licensee's decision as to a particular hire, as long as it is made
    in good faith.

84. NAB urges that we should create an exemption from our recruitment
    requirement for "unique" jobs, including on-air talent and general
    managers.[^143] In some instances, the unique nature of a particular
    position and the need to proceed promptly to fill it may qualify as
    an exigent circumstance that would warrant a decision not to
    recruit. We will not, however, exempt whole categories of jobs from
    recruitment because the exigency may not exist in all circumstances.
    NAB also urges that we should create an exemption where it is futile
    to recruit. It cites as an example the case of a station seeking to
    hire a chief engineer or meteorologist when there is no reasonable
    likelihood that a qualified person would be found from an
    advertisement in the local newspaper.[^144] It also suggests that
    there should be no requirement to conduct additional recruitment
    when a station has accumulated a number of resumes from qualified
    persons at job fairs.[^145] These concerns are not appropriately
    addressed in the context of an exemption from the recruitment
    requirement, however, because they relate to the manner in which
    recruitment is conducted, which we discuss below.

85. NAB suggests also that recruitment should not be required when a
    broadcaster has already identified a "preferred person" for a
    position sought to be filled. We would, in rare circumstances,
    recognize as an exigent circumstance the availability of a talent so
    unique and exceptional that a broadcaster could reasonably conclude
    that a comparable talent is unlikely to be found by recruitment.
    This would not, however, extend to all circumstances in which a
    broadcaster, without recruitment, has identified a "preferred"
    candidate because that would make recruitment effectively optional,
    especially for the best jobs.

86. Accordingly, the requirement that broadcasters recruit for every
    full-time vacancy, unless exigent circumstances exist, will become a
    component of our Rule. Recruitment for only some openings could
    leave the most desirable positions open to a limited number of
    potential applicants, possibly excluding significant segments of the
    community.[^146] We will require that broadcasters develop and use
    for each vacancy a recruitment source or list of recruitment sources
    (which may be freely modified as circumstances warrant) sufficient
    to ensure wide dissemination of information about the opening.[^147]
    We will not dictate the number or type of sources that a broadcaster
    must use. If, however, the source or sources used cannot reasonably
    be expected, collectively, to reach the entire community, the
    broadcaster may be found in noncompliance with our EEO Rule. A
    broadcaster may widely disseminate job postings through any
    combination of methods sufficient to ensure that its recruitment
    efforts are inclusive. Broadcasters may contact the FCC's EEO staff
    with any questions on this matter.

87. We also clarify that the same recruitment sources need not be used
    for every hire. We recognize that different positions may require
    different qualifications, as noted by NAB with respect to the
    positions of chief engineer or meteorologist. Accordingly, different
    recruitment sources may be appropriate to reach persons in the
    community likely to possess the requisite qualifications for such
    positions. We do not require licensees to use recruitment sources
    that, in their good faith judgment, are unlikely to elicit responses
    from qualified applicants in light of the demands of a particular
    job. Licensees are not required, for example, to place a job notice
    in the local newspaper if they do not believe in a particular
    situation that the newspaper would be likely to reach qualified
    applicants. We do expect them, however, to use whatever recruitment
    source or sources can reasonably be expected to widely disseminate
    notice of the vacancy to qualified applicants.

88. 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.[^148] Moreover, in the case of the chief
    engineer or meteorologist type of positions noted by NAB, a source
    from outside the community, such as a national publication directed
    to engineers, might be an effective method of communicating the
    availability of the position to persons located within the
    community. For example, someone in a station's local community who
    has the unique qualifications to be a meteorologist may rely almost
    entirely on national sources to search for meteorologist jobs in
    broadcasting. Whatever sources a licensee uses, however, or whatever
    a licensee's perception is regarding whether anyone in its community
    is qualified for a unique job, we are requiring that sources reach
    qualified potential applicants in the licensee's community.
    Licensees are not permitted to target any group in the community for
    exclusion from the recruitment process.

89. We further emphasize that our Rule requires only that the
    recruitment source or sources used be reasonably calculated to reach
    the entire community. It does not require that a broadcaster be able
    to demonstrate that people in any particular segment of the
    community actually were aware of the vacancy or applied for the
    position. Contrary to concerns expressed by some,[^149] we do not
    require that recruitment be targeted to specific groups in the
    community, or that a licensee demonstrate that it obtained a
    response from a particular group. Furthermore, in assessing the
    adequacy of their recruitment sources, broadcasters may assume that
    persons seeking jobs will make some effort to seek out job
    opportunities in publicly available resources.

90. NAB proposes that broadcasters should be allowed to recruit for such
    positions as salespersons solely on the basis of resumes received at
    job fairs. Non-vacancy-specific recruitment is not, however, an
    adequate substitute for recruitment when vacancies arise. We have
    permitted broadcasters to rely upon reasonably current applications
    on file, however, where the applications were the product of a
    vacancy-specific recruitment conducted in accordance with our Rule.
    In *MyStar Communications Corporation*, for example, we found that
    applications elicited three months prior to the hire at issue were
    not necessarily stale.[^150] For purposes of our present rule, we
    will apply a similar policy. Thus, if a broadcaster recruits in
    accordance with our present vacancy-specific broad outreach
    requirement, and in its judgment the applications received remain
    viable at a later date, it may make additional hires for
    substantially the same position originally advertised from that pool
    without initiating a new recruitment process. In addition, it may
    consider along with the previously submitted applications additional
    applications received at job fairs or through other
    non-vacancy-specific efforts.

91. MMTC requests that we clarify that, although not required, our Rule
    permits the use of recruitment sources targeted to minorities or
    females.[^151] Our Rule neither requires nor precludes the use of
    any specific sources a broadcaster deems appropriate to achieving
    broad outreach. MMTC's concern arises from language in *Association*
    suggesting that the use of minority-targeted sources might
    disadvantage non-minorities by depriving them of notice. MMTC
    suggests that some have construed this as meaning that the use of
    minority-targeted sources would constitute unlawful discrimination.
    We do not believe this would be true if a broadcaster were using
    recruitment sources sufficient to achieve broad outreach.

92. With reference to the definition of community for purposes of the
    broad outreach requirement, we proposed in the *Second NPRM* to
    define "community" as encompassing, at a minimum, the county in
    which a station is licensed or MVPD employees are primarily located,
    or the Metropolitan Statistical Area ("MSA") in the case of counties
    located in an MSA.[^152] NAB objects to this definition because
    counties and MSAs do not necessarily reflect a station's actual
    service area.[^153] Upon further reflection, we agree. We will
    instead define "community" for the purpose of the broad outreach
    requirement in accordance with the approach taken in the *Recon*.
    There, we left the definition of "market" or "community" to the
    licensee's good faith discretion. We indicated, however, that, in
    making this determination, 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.[^154] We will adopt the same policy
    for purposes of our new Rule.[^155]

93. LTVG argues that a rule not adequately explained is an arbitrary
    rule and that the Commission has not adequately explained its EEO
    Rule.[^156] For example, LTVG claims that the Commission has not
    explained what it means when it directs broadcasters to reach out to
    all segments of the entire community under Prong 1 of the EEO Rule.
    LTVG asserts that it is impossible for broadcasters to reach out to
    every segment in the entire community whenever a job in broadcasting
    becomes available because there are an infinite number of segments,
    including "occupational segments, ideological segments, sociological
    segments, historical segments, recreational segments, political
    segments, philosophical segments, economic segments and so
    on."[^157] In addition, LTVG argues that the language of Prong 1 is
    unclear and therefore it interprets Prong 1 as meaning "that a
    broadcaster is not 'required' to use recruitment sources
    specifically targeted at minorities and women, but only if it can
    demonstrate that it employs some alternate method of 'reaching out'
    to minorities and women."[^158] LTVG also argues that the Commission
    has not explained why multiple recruitment sources must be used in
    providing notice of job openings. LTVG further argues that Prong 1
    provides no meaningful exception for "urgent hire" or other
    situations where recruitment is not feasible. In addition, LTVG
    argues that the Commission's "logical premise that 'fairness' is not
    possible without the proposed 'outreach' rules is plainly invalid"
    because Prong 1 requires detailed and burdensome outreach.[^159]

94. As discussed above, under Prong 1 of our EEO Rule, we require only
    that EEO recruitment sources be reasonably calculated to reach the
    entire community. We do not require that broadcasters demonstrate
    that any particular segment of the community actually was aware of
    any vacancy. Nor do we require that recruitment be targeted to a
    specific segment or that broadcasters prove that they obtained a
    response from a particular segment. Prong 1 neither requires nor
    precludes the use of any number or type of sources a broadcaster
    deems appropriate to achieve broad outreach. Further, we leave the
    definition of "community" to the licensee's good faith discretion.
    We also recognize that it is difficult for licensees to recruit for
    vacancies in exigent circumstances. Thus, Prong 1 allows
    broadcasters flexibility in implementing appropriate recruitment
    programs for their individual circumstances.

95. As indicated above, StBAs has proposed that we should deem posting
    of job vacancies on the Internet as constituting adequate
    recruitment. We addressed a similar proposal in the *Report and
    Order*.[^160] At that time, we expressed our concern as to the use
    of the Internet as a sole recruitment source based on the
    developmental state of broadcast association job banks and the
    possibility that Internet-only recruitment would disproportionately
    disadvantage minorities and those living in rural areas. We
    questioned whether industry web sites had become well known as
    repositories of job announcements for prospective applicants. We
    also questioned whether the availability of Internet access in
    schools and libraries provided a widespread mechanism for
    prospective applicants otherwise without Internet access to conduct
    job searches. We thus concluded that it was premature to recognize
    the Internet as a sole recruitment source, although we indicated
    that we would monitor the development of the Internet as a
    recruitment tool. We indicated that we would revisit the issue based
    on petitions demonstrating that Internet job banks (1) are well
    established and provides comprehensive statewide job listings; (2)
    are sufficiently publicized throughout the community; (3) are
    available to stations that are not members of the association
    sponsoring the Internet job bank to list their job vacancies;
    and (4) that computer access has become sufficiently universal so
    that it could be reliably assumed that an Internet job posting will
    be readily available to all segments of the community. Finally, we
    said we would review the extent to which applicants are applying for
    jobs as a result of web postings, whether and why any segment of the
    community is having particular difficulty in gaining access to such
    postings, and methods by which the petitioner would reach that
    segment of the population. In the *Second NPRM*, we requested
    comments as to whether we should revisit this issue.

96. The record reflects that NASBA and NAB now maintain national on-line
    job sites, as do almost all state broadcast associations.[^161] With
    respect to the MVPD industry, NCTA states that online job banks are
    maintained by the Walter Kaitz Foundation, which NCTA describes as
    the industry's diversity-focused organization, and the National
    Association of Minorities in Telecommunications (NAMIC), a trade
    association.[^162] Cox Communications, Inc. ("Cox"), which states
    that it provides MVPD services to more than six million subscribers,
    reports that, in 1999, it created an Internet career network to
    alert its employees and the general public in the communities in
    which it operates, as well as other areas of the country, of job
    vacancies at all levels of its operations. Cox indicates that its
    experience with the Internet career network has been quite
    positive.[^163]

97. Notwithstanding the greater availability of job-related Internet
    sites, the record does not reflect the extent to which the Internet
    has become well known as a principal resource for job seekers or the
    nature of any difficulties that Internet recruitment would create.
    We anticipated in the *Report and Order* that we would be able to
    assess the extent of any such difficulties based on our experience
    under the rules adopted therein. Because those rules were in effect
    for only a few months, however, we do not have the experience
    necessary to reach definitive conclusions in that respect.

98. With regard to the access of minority and rural populations to the
    Internet, our concerns arose from a series of reports by the
    National Telecommunications and Information Administration ("NTIA")
    in 1995, 1998 and 1999.[^164] The most recent NTIA report on
    Internet usage was released in February 2002.[^165] The 2002 NTIA
    report finds that, as of September 2001, 56.5 percent of U.S.
    households had a computer and 50.5 percent of U.S. households had an
    Internet connection. As of September 2001, 53.9 percent of
    individuals were using the Internet, compared with 44.5 percent in
    August 2000. Use of the Internet by people in rural households has
    grown by 24 percent over the period from 1998 to 2001 and now
    approaches the national average. Internet use by Blacks reached 39.8
    percent in September 2001, up from 29.3 percent in August 2000 and
    19.0 percent in December 1998. Internet use by Hispanics reached
    31.6 percent in September 2001, up from 23.7 percent in August 2000
    and 16.6 percent in December 1998. Internet use by Whites reached
    59.9 percent in September 2001, up from 50.3 percent in August 2000
    and 37.6 percent in December 1998. Internet usage by Asian/Pacific
    Islanders reached 60.4 percent in September 2001, up from 49.4
    percent in August 2000 and 35.8 percent in December 1998.[^166]
    Internet use by persons in the lowest income group (less than
    \$15,000 per year) reached 25 percent in September 2001, up from
    18.9 percent in August 2000 and 13.7 percent in December 1998.

99. Proponents of the use of the Internet as a sole recruitment source
    cite the improvements reflected in NTIA's 2002 report.[^167]
    Opponents of reliance on the Internet as a sole source note that
    there remain disparities in the use of the Internet.[^168] Although
    the NTIA 2002 report shows increases in Internet usage, the report
    also indicates continuing disparities in usage among different
    segments of society. Indeed, only about half of all U.S. households
    had Internet service as of September 2001, and only slightly more
    than half of individuals used the Internet from any location.[^169]
    Accordingly, we are unable to conclude that Internet usage has
    become sufficiently widespread to justify allowing it to be used as
    the sole recruitment source. As we indicated in the *Report and
    Order*, however, we will continue to monitor the viability of the
    Internet as a recruitment source and will consider petitions seeking
    to demonstrate in the future that circumstances have changed
    sufficiently to warrant a change in our policy.

100. As indicated in the *Report and Order,*[^170] we expect
     broadcasters to allow a reasonable time after recruitment is
     initiated for applications to be filed before the position is
     filled. We recognize that occasionally a shorter time might be
     necessary because of extraordinary circumstances. We caution,
     however, that excessive instances of hires being made shortly after
     the initiation of recruitment could result in a finding of
     noncompliance if the evidence suggests that the broadcaster is not
     in good faith allowing adequate time for applicants to respond to
     its outreach efforts or is not considering their applications. MMTC
     suggests that we should adopt specific requirements regarding the
     timing of recruitment and accompanying record-keeping requirements
     to prevent pre-selection of the successful candidate.[^171] Such
     requirements would add burdens that would not necessarily achieve
     the desired end. We caution broadcasters and MVPDs, however, that
     evidence that an entity has pre-selected a successful candidate
     without considering the applications of other applicants will be
     considered in evaluating compliance with our Rule.

101. MMTC also suggests that broadcasters and MVPDs should certify that
     they do not rely primarily on word of mouth recruitment.[^172] Such
     a certification is not necessary because we require broad outreach
     in filling all full-time vacancies, except for rare exigent
     circumstances. It is not the intention of our Rule to prohibit word
     of mouth recruitment. Our purpose is to ensure that word-of-mouth
     recruitment practices are not the sole method of recruitment and
     that all members of the public have an opportunity to compete for
     available jobs. Broadcasters are free to use non-public recruitment
     sources and to interview and hire persons referred by such sources,
     so long as they also use public recruitment sources sufficient to
     achieve broad outreach and fairly consider the applications
     generated by those sources.

102. We will continue our policy stated in the *Report and Order* that
     broadcasters may engage in joint recruitment efforts.[^173]
     Broadcasters may also rely upon the services of outside
     organizations or individuals to assist it in designing or
     implementing their recruitment efforts.[^174] Each broadcaster (or
     MVPD), however, remains individually responsible for compliance
     with our Rule. No broadcaster (or MVPD) is required to use the
     services of an outside party.

103. We will not require recruitment for internal promotions, nor will
     we require recruitment for temporary employees. Typically, we view
     temporary employees as including those hired as emergency
     replacements for absent regular employees or those hired to perform
     a particular job for a limited period of time. If a person is hired
     full-time to perform a regular station function for an extended
     period of time (*e.g.*, more than six months), however, such a hire
     will be treated as a permanent hire for which recruitment would be
     required. We recognize that some broadcasters may wish to hire
     employees initially on a temporary basis with the possibility of
     retaining them on a permanent basis if their performance is
     satisfactory. In such circumstances, if recruitment is done at the
     time of the temporary hire, any later decision to convert the
     employee\'s status to full-time in the same, or essentially the
     same, job may be treated as a promotion. If an employee is hired as
     a temporary employee without recruitment, however, recruitment
     should occur if the employee is later considered for a permanent
     position. We caution 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.[^175]

104. With respect to part-time hires, under our pre-*Lutheran Church*
     EEO Rule, we expected broadcasters to recruit for part-time
     positions but did not focus on part-time hires in our review of EEO
     programs.[^176] We retained this policy in the *Report and
     Order*.[^177] Thus, we provided in the Rule we adopted at that time
     that, for part-time hires, broadcasters need only substantially
     comply with the requirement to recruit for every vacancy. AWRT
     urges that we should apply the same recruitment requirement to
     part-time vacancies as is applied to full-time vacancies, citing
     the value of part-time positions in providing entry into
     broadcasting.[^178] We agree that some positions involving less
     than a forty-hour work week are as important as full-time
     positions. For that reason, we will continue to define \"full-time
     employee\" as a permanent employee whose regular work schedule is
     thirty hours or more per week. Thus, the full recruitment and
     reporting requirements applied to full-time employees will cover
     all of these positions. For those positions involving less than
     thirty hours per week, however, we do not find that the record
     before us adequately addresses the issue of whether all or some of
     our recruitment requirements should apply to such employees. We are
     accordingly issuing below a Third Notice of Proposed Rule Making
     requesting comment on the issue of part-time employees. Pending the
     outcome of that further rulemaking, we will not apply our rules to
     part-time hires.

105. In the *Recon*, we indicated that, as in the case of temporary
     hires, if a part-time employee is initially hired after broad
     outreach to all segments of the community, the decision
     subsequently to convert him or her to full-time in the same, or
     essentially the same, job may be treated as a promotion. If the
     broadcaster did not engage in full recruitment at the time of the
     initial part-time hire, however, it would have to recruit before
     converting the employee to full-time. Also, as in the case of
     temporary hires, 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.[^179] We will apply the same policy under the Rule
     being adopted today.

106. **Outreach Prong 2 -- Notification to Community Groups**. Under the
     Option A rules adopted in the *Report and Order*, we required that
     broadcasters and MVPDs provide notification of full-time job
     vacancies to organizations involved in assisting job seekers upon
     request by such organizations. We will incorporate this requirement
     into our new rules. This requirement provides a "safety valve" to
     ensure that no segment of the community is inadvertently omitted
     from recruitment efforts. Organizations or other entities with ties
     to specific segments of the labor force, such as persons with
     disabilities, college students, or members of different racial,
     ethnic, or religious groups could help broaden the reach of
     recruitment efforts. Organizations that come forward to request
     vacancy notifications may prove to be very productive referral
     sources. Further, this approach will enable interested groups to
     more closely monitor and, if necessary, seek to improve,
     broadcasters' recruitment efforts.[^180] We also expect
     broadcasters to make reasonable efforts to publicize the
     notification requirements so that qualifying groups are able to
     learn of the new procedure. Joint announcements by broadcasters or
     state broadcasters' associations -- such as press releases,
     newspaper ads, and notices posted on the web site -- would satisfy
     the requirement to publicize. Similarly, broadcasters and MVPDs
     could satisfy this requirement by individually issuing such
     announcements, or by providing on-air announcements.

107. We will provide broadcasters discretion to determine the method of
     providing notice to requesting parties. Such methods may include
     electronic mail and facsimile which may require fewer personnel and
     financial resources to fulfill the notification requirement than
     more traditional methods. For example, a broadcaster may maintain
     an electronic list of recruitment sources and notify all the
     sources simultaneously with a single e-mail when a vacancy occurs.
     We will also allow notifications to be made as part of joint
     recruitment efforts among broadcasters. However, each broadcaster
     participating in the joint recruitment efforts remains individually
     responsible for ensuring that requested notifications relating to
     its employment unit are made. For example, a state broadcast
     association may have a job bank that notifies certain sources on
     behalf of an employment unit when a vacancy becomes available at
     that employment unit. As long as the state broadcast association
     notifies all organizations requesting vacancy announcements from
     that employment unit as part of this process, the employment unit
     itself need not do so. Therefore, given the flexibility provided by
     electronic forms of notice and joint recruitment, we expect that
     the notification requirement will place minimal burdens on
     broadcasters.

108. An organization that wishes to be notified of vacancies need only
     notify a broadcaster once in order to be entitled to notification
     of all future full-time vacancies. However, if a broadcaster is
     uncertain as to the status or continuing interest of a particular
     group, it is free to contact the group to resolve any questions. So
     long as the group indicates its continued interest in receiving
     notifications, it is entitled to receive them.

109. The obligation to notify recruitment sources that request notice of
     vacancies is intended as a supplement to, not a substitute for,
     broadcasters' core, non-delegable obligation to widely disseminate
     information concerning all job vacancies. Although recruitment
     sources will have the right to ask broadcasters for notices of
     vacancies, they have no obligation to do so. And even if a
     broadcaster does not receive a single request for notice of vacancy
     information, it will nevertheless be responsible for ensuring that
     notice of vacancies is widely disseminated. If it fails to do so,
     it is not a legitimate excuse that no recruitment organizations
     requested notices.

110. The requirement to send job notices to qualifying entities
     requesting vacancy announcements sets no limit on the number of
     entities that may request notifications. The Local Television Group
     ("LTVG") argues that this could potentially result in hundreds of
     entities requesting notifications and unwieldy burdens being
     imposed on a licensee, and is therefore arbitrary and
     capricious.[^181] It is not our intention to make this requirement
     unreasonable or unmanageable. During the period that this
     requirement, which was adopted in the *Report and Order,* was in
     effect in 2000 and 2001, the Commission received no information
     indicating that it was burdensome. Furthermore, no new evidence has
     been presented in this proceeding indicating that licensees were
     overly burdened by the requirement when it was in effect. Based on
     the record, there does not appear to be a need to set maximum
     limits on the number of notification requests. If, however, we
     receive evidence that this requirement imposed an excessive burden,
     we will revisit this issue.

111. LTVG also argues that the Commission's assertion that "the
     expansive 'Prong 2' 'safety valve' requirement is also necessary
     appears to be inadequately explained, and therefore
     arbitrary."[^182] It further alleges that Prong 2 appears to be
     arbitrary because it would "effectively delegate to private
     entities the authority to require what the FCC itself states the
     proposed 'outreach' rules are not intended to require: 'the use of
     recruitment sources that are specifically targeted at minorities,
     women or any other group."[^183]

112. Prong 2 of the EEO Rule requires broadcasters and MVPDs to provide
     requested notification of full-time job vacancies to organizations
     involved in assisting job seekers, regardless of whether they are
     minority or women's organizations. As explained above, the
     notification requirement provides a "safety valve" to ensure that
     no segment of the community is inadvertently omitted from
     recruitment efforts. This neutral requirement allows community
     groups to become actively involved in broadening the outreach of
     recruitment efforts. Contrary to LTVG's arguments, this requirement
     increases inclusiveness in sources and does not exclude any
     segment.

113. **Outreach Prong 3 -- Menu Options**. Under the Rules adopted by
     the *Report and Order,* we required, under Option A, that
     broadcasters and MVPDs engage in a specified number of activities
     selected from a menu of options, such as job fairs, community
     events relating to broadcast employment, internship programs,
     scholarships, and similar activities. These activities are designed
     to go beyond the normal recruitment activities directed at filling
     particular vacancies. They are designed to encourage outreach to
     persons who may not be aware of the opportunities available in
     broadcasting or the MVPD industry or have not yet acquired the
     experience to compete for current vacancies. Thus, interested
     members 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. This approach
     remains justified and is not unduly burdensome. Various menu
     options encourage outreach to students and others who would benefit
     from training, mentoring and scholarships, which can work to
     enhance the employability of persons seeking jobs in the
     broadcasting or MVPD industries. These menu methods of outreach
     also are designed to further broaden outreach efforts to reach
     segments of the labor force who may be inadvertently omitted from
     vacancy-specific recruitment. As indicated above, under this
     approach, broadcasters and MVPDs have great flexibility to design
     the types of recruitment activities best suited to their
     organizations and communities. In the Rule we are adopting today,
     we will adopt this requirement while providing additional
     flexibility by incorporating additional menu options that have been
     suggested by the parties. We are also reducing the number of menu
     options that employment units located in smaller markets must
     perform.

114. The first three specific menu options include participation in at
     least four job fairs by station personnel who have substantial
     responsibility for hiring decisions; hosting at least one job fair;
     or co-sponsoring at least one job fair with an organization in the
     business and professional community whose membership includes
     substantial participation of women and minorities. Job fairs are a
     useful method to reach a broad range of individuals who are
     interested in employment in the industry. The fourth option is
     participation in at least four activities sponsored by community
     groups active in broadcast employment issues, including
     conventions, career days, workshops and similar activities. Such
     participation will enable broadcasters to establish relationships
     with groups in the community that might otherwise be overlooked.
     The fifth option is the establishment of an internship program
     designed to assist members of the community to acquire skills
     needed for broadcast employment. Such an endeavor would serve the
     goal of broad outreach by increasing the number of qualified
     potential employees not only for one broadcaster, but for all
     broadcasters in the area. The sixth option is participation in
     general (as opposed to vacancy-specific) outreach efforts by such
     means as job banks or Internet programs such as those described in
     the model program developed by NASBA. While such sources may be
     used as recruitment sources when specific vacancies occur, they can
     also be useful even when there is no specific vacancy to elicit
     interest from persons who may later be considered for a specific
     position. The seventh option is participation in scholarship
     programs directed to students desiring to pursue a career in
     broadcasting. The benefit of this outreach is that it attracts
     students of both genders and all races to careers in broadcasting,
     ultimately increasing the number of qualified potential employees.
     The eighth and ninth options are, respectively, the establishment
     of training and mentoring programs designed to enable station
     personnel to acquire skills that could qualify them for higher
     level positions. These options would not be satisfied by ordinary
     training required for employees to perform their current positions.
     These options are rather intended to increase employee skills so
     they can qualify for higher positions.

115. The tenth option is participation in at least four events or
     programs relating to career opportunities in broadcasting sponsored
     by educational institutions. Such participation again serves the
     purpose of increasing the universe of potential employees from
     which broadcasters attract job applicants. For instance, it is
     stated in the NASBA program submitted as an attachment to StBAs'
     comments that it is important that educational institutions
     perceive broadcasting as a rewarding career for their students and
     offer courses and experiences that will be helpful to students who
     may choose a career in broadcasting.[^184] The eleventh option
     includes sponsorship of at least two events in the community
     designed to inform the public as to employment opportunities in
     broadcasting. Such activities can serve to increase public
     awareness of the opportunities available in broadcasting. The
     twelfth option would entail listing each upper-level opening in a
     job bank or newsletter of a media trade group with a broad-based
     membership, including participation of women and minorities.

116. We propose to add to the specific menu options some new ideas
     proposed by commenters. The thirteenth option will consist of
     providing assistance to outside non-profit entities in the
     maintenance of web sites that provide counseling on the process of
     searching for broadcast employment and/or other career development
     assistance pertinent to broadcasting. The fourteenth option
     consists of providing training to management level personnel as to
     methods of ensuring equal employment opportunity and preventing
     discrimination. The fifteenth option consists of providing training
     to personnel of outside recruitment organizations that would enable
     them to better refer job candidates for broadcast positions.[^185]

117. The sixteenth option (which was the thirteenth option in our former
     Rule) includes participation in activities other than the fifteen
     listed options that the licensee has designed to further the goal
     of disseminating information about employment opportunities in
     broadcasting to job candidates who might otherwise be unaware of
     such opportunities. This will provide flexibility for worthwhile
     initiatives that broadcasters may develop but that are not strictly
     within the scope of the menu options we have specified. The
     inclusion of this option makes it clear that the list of menu
     options is an open-ended list intended to guide, rather than limit,
     broadcasters and MVPDs.

118. NOW urges that we should clarify and quantify the amount of effort
     that broadcasters must devote to the menu options.[^186] We decline
     to do so because any quantification we might provide would unduly
     restrict needed flexibility. We caution, however, that token
     efforts will be found inadequate.

119. In the *Report and Order*, we required station employment units
     with more than ten full-time employees to implement four of these
     options every two years. For example, a broadcaster could fulfill
     this requirement by, during a two-year period, hosting one job
     fair, establishing an internship program, participating in a
     scholarship program, and co-sponsoring one job fair with an
     organization in the business and professional community whose
     membership includes participation of minorities and women.[^187]
     This requirement will be incorporated into our new Rule. The
     two-year period will generally extend from the time a licensee
     files its renewal application to the second, then fourth, and then
     sixth anniversary thereof. Initially, it will extend from the
     effective date of the Rule until the next pertinent anniversary. If
     that time period is less than two years, the number of menu options
     may be reduced proportionally to the amount of time available.
     Thus, if a station is required generally to perform four menu
     options every two years, it would be expected to perform one for
     each six-month period between the effective date of the Rule and
     the next regular pertinent anniversary. Although we ordinarily do
     not dictate when a broadcaster must complete its menu options
     during the regular two-year period, when a broadcaster owns a
     station or stations for less than the full two-year period, it must
     complete the prorated number of menu options within the available
     time period. As discussed below, we will require employment units
     with five to ten full-time employees as well as employment units in
     certain smaller markets to perform two of the menu options every
     two years.

120. We will also permit broadcasters to perform menu options on a joint
     basis, either with other broadcasters, organizations such as state
     broadcaster associations, or with a corporate licensee's corporate
     headquarters. However, a station seeking credit for a particular
     menu option performed on a joint basis must have a meaningful
     involvement in the activity for which credit is sought. It is not
     sufficient for the station merely to lend its name to an activity
     or provide money where the activity is otherwise entirely conducted
     by another entity such as a trade association or the licensee's
     corporate headquarters. In the *Recon*, we discussed a number of
     circumstances where credit might be sought for activities engaged
     in on a joint basis.[^188] This discussion remains applicable to
     joint efforts engaged in pursuant to the rules we are adopting
     herein, and are discussed below.

121. For example, 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. 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.

122. We note that the term "sponsor" as used in connection with several
     options set forth in Section 73.2080(c)(2) of the old Rule, which
     we also use in our new Rule, was apparently 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.

123. With respect to the maintenance of a scholarship program by a
     corporate licensee, it is reasonable for a corporate licensee to
     maintain a scholarship program for those employment units it owns.
     Any such scholarship program, however, 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.

124. Unrelated broadcasters may 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. 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.

125. With respect to mentoring, internships, 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, internships or training program.
     Similar questions arose under our former Rule 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, although 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.

126. LTVG argues that some of the requirements of Prong 3 have been
     inadequately explained and are therefore arbitrary.[^189] It also
     argues that because the requirements have no rational connection to
     the Commission's stated purpose for the outreach rules (assuring
     fair opportunity to all job seekers through broad and inclusive
     outreach in recruitment), any effort to justify them based on this
     purpose would be arbitrary. LTVG claims that the requirements are
     also arbitrary because there is no rational basis for using the
     coercive power of federal law to induce more people to pursue
     careers in broadcasting when there is no shortage of qualified
     employees in the broadcast industry. LTVG further claims that
     Communications Act does not empower the FCC to adopt the Prong 3
     requirements and, even if it does, the requirements would almost
     certainly be invalid under the First and Fifth Amendments to the
     Constitution.

127. As explained above, the EEO Rules adopted by the *Report and Order*
     under Option A required broadcasters and MVPDs to engage in
     activities selected from a broad menu of options, such as job
     fairs, community events relating to broadcast employment,
     internship programs, scholarships, and similar activities. These
     Prong 3 activities are designed to go beyond the normal recruitment
     activities directed at filling particular vacancies in order to
     encourage outreach to persons who may not be aware of the
     opportunities available in broadcasting or the MVPD industry or
     have not yet acquired the experience to compete for current
     vacancies. Thus, interested members 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. As stated earlier, Prong 3 activities are intended as
     a method to reach segments of the community who might otherwise be
     omitted, possibly inadvertently, from vacancy-specific recruitment
     efforts.[^190]

128. **Outreach Requirements of Religious Broadcasters**. In the NPRM,
     we proposed to adopt a policy under which religious broadcasters
     that elected to apply a religious qualification to all of their
     employees were not required to comply with the broad outreach
     recruitment requirement or the menu options, but they must make
     reasonable, good faith efforts to recruit applicants, without
     regard to race, color, national origin or gender, among those who
     are qualified based on their religious belief or affiliation.[^191]
     We adopt that policy. This approach reflects our judgment that the
     more specific recruitment requirements described above may not be
     suited to recruitment that is limited to members of a certain
     religious faith. This requirement will also apply to religious
     broadcasters that elect to establish a religious qualification for
     some, but not all, of their positions, with respect to those
     positions that are subject to the religious qualification. Such
     religious broadcasters, with respect to other positions not subject
     to a religious qualification, must comply with prongs one and two.
     A religious broadcaster that treats five or more its full-time
     positions as non-religious are required to comply with the prong
     three menu options because, in regard to those positions, the
     station is in a comparable position to stations that have five or
     more full-time employees and none subject to a religious
     qualification. A religious broadcaster electing to treat none of
     its positions as subject to a religious qualification would be
     required to comply with all three prongs.

129. Trinity Broadcasting Network ("TBN") objects to the requirement
     that a religious broadcaster that establishes a religious
     qualification make reasonable, good faith efforts to recruit
     applicants who are qualified based on their religious belief or
     affiliation on the grounds that it would put the Commission in the
     position of determining which persons are so qualified.[^192] This
     is not the case. Once an entity establishes its qualifications as a
     religious broadcaster, it has the discretion to define the
     religious qualification it seeks to establish. Thus, it may define
     the qualification generally as encompassing an entire denomination;
     more specifically as encompassing only persons who share a
     particular doctrinal belief; or even more specifically as
     encompassing only persons who are members of a particular church or
     religious organization. We do not intend to inquire into a
     religious broadcaster's definition of its religious qualification.
     All we require is that some effort be made to notify persons who
     meet the definition established by the religious broadcaster itself
     as to the availability of employment at the religious broadcaster's
     station.

130. **Outreach Requirements for Noncommercial Broadcasters**. Several
     commenters representing noncommercial broadcasters suggest that we
     do not need to impose our EEO requirements on noncommercial
     broadcasters, such as stations operated by governmental or public
     educational entities, because they are subject to EEO requirements
     imposed by other Federal, state or local governments, or policies
     prescribed by the governmental or educational entity itself.[^193]
     We are not persuaded. The proposal to exempt non-commercial
     broadcasters from our EEO rules would, like the NAB proposal to
     rely on programs developed by state associations, be confusing to
     the public and difficult to enforce. We can not merely assume that
     a broadly defined class of stations is necessarily subject in each
     instance to an effective alternative to our requirements, and, even
     if we could, reliance on such alternate programs would put us in
     the untenable position of having to resolve whether a broadcaster
     had violated requirements of other agencies in order to determine
     whether it was in compliance with our rules.[^194]

131. **Outreach Requirements for International Stations**. In the
     *Recon*, we indicated that international broadcast stations
     licensed pursuant to Section 73, Subpart F, Sections 73.701, *et
     seq.*,[^195] would be subject to our EEO requirements, except for
     the public file requirement, discussed below, given that such
     stations are not required to have a public file.[^196] We are
     continuing this requirement in the new rules.

132. **Recordkeeping**. We will require broadcasters to retain
     documentation concerning their compliance with the three
     recruitment prongs, as proposed in the *Second NPRM*.[^197] This
     documentation must be retained by the station, but will not be
     routinely submitted to the Commission. The data must, however, be
     provided to the Commission upon request in the event of an
     investigation or audit. The documentation includes: (1) listings of
     all full-time job vacancies filled by the station employment unit,
     identified by job title; (2) for each such vacancy, the recruitment
     sources used to fill the vacancy (including, if applicable,
     organizations entitled to notification, which should be separately
     identified), identified by name, address, contact person and
     telephone number; (3) dated copies of all advertisements,
     bulletins, letters, faxes, e-mails, or other communications
     announcing vacancies; and (4) documentation necessary to
     demonstrate performance of the Prong 3 menu options, including
     sufficient information to disclose fully the nature of the
     initiative and the scope of the station\'s participation, including
     the station personnel involved. This documentation will allow us to
     verify compliance with our rules; we find no reason to believe that
     this minimal record retention requirement imposes an unreasonable
     burden on broadcasters or MVPDs.

133. We also sought comments in the *Second NPRM* as to whether we
     should require the retention of documentation concerning the
     recruitment sources that referred hires and interviewees. MMTC
     urges that we should adopt the requirement in order to ensure that
     the recruitment process is conducted in good faith and to determine
     whether recruitment sources are productive in generating
     applicants.[^198] NOW urges us to require retention of records
     concerning the referral sources of applicants.[^199] StBAs opposes
     tracking the referral sources of interviewees or hires because, it
     contends, the real purpose is to unconstitutionally track minority
     and female interviewees and hires using recruitment sources as
     "proxies for persons of certain races, ethnicities and genders." It
     suggests that the process, not the results, is the relevant focus
     of our rules.[^200] NCTA argues that documentation verifying that
     recruitment occurred is sufficient and that collection of data
     regarding the recruitment sources of hires and interviewees is
     unnecessary.[^201]

134. Our Rule focuses on the process of recruitment, not the results
     thereof. It is nonetheless necessary to have some means of
     assessing whether the process has been conducted in good faith and
     whether the process is working as intended. We expect that
     broadcasters and MVPDs will analyze the results of their
     recruitment efforts to ensure that they actually achieve broad
     outreach. This requires knowledge of what recruitment sources have
     been productive in generating qualified applicants. Records of the
     recruitment sources of the most qualified applicants -- those
     interviewed or hired -- will be helpful in this regard. We will
     accordingly require that broadcasters and MVPDs maintain records
     reflecting the referral sources of interviewees and hires.

135. We will not require the retention of records of the recruitment
     sources of applicants. Data concerning the recruitment sources of
     interviewees and hires is sufficient for the limited purpose of
     determining whether the program is being conducted in good faith
     and working as intended. Further, although it is minimally
     burdensome to ascertain the recruitment sources of interviewees and
     hires because they are readily available to provide this
     information if it is not reflected in the jobseeker's application,
     tracking the recruitment source of all applicants may require
     additional efforts to collect this information. This may place an
     inordinate burden on broadcasters and MVPDs, particularly in light
     of the fact that information concerning applicants in the aggregate
     does not necessarily reflect sources of *qualified* applicants.

136. StBAs' suggestion that our recruitment tracking requirement is
     surreptitiously intended to track the number of minorities and
     females in applicant pools is baseless. Nothing in our rules
     requires, or gives preference, to the use of minority or female
     oriented recruitment sources. Indeed, minorities and females likely
     are referred by all sources, including the Internet or newspapers,
     so that it is impossible to draw any conclusion as to the numbers
     of minorities and females interviewed or hired based solely on the
     identity of recruitment sources.

137. We will require that all records documenting outreach efforts be
     retained until the grant of the renewal application covering the
     license term during which the hire or activity occurs, except that,
     if a licensee acquired a station pursuant to an assignment or
     transfer that required Commission approval of FCC Form 314 or 315
     during the license term, it need not retain records pertaining to
     the outreach efforts of a prior licensee. In order to minimize any
     burden associated with this requirement, records may be maintained
     in an electronic format, *e.g.*, by scanning pertinent documents
     into a computer format. Absent a showing of extraordinary
     circumstances, we will not credit claimed activities that cannot be
     supported by records.

138. In the case of religious broadcasters that apply a religious
     qualification to some or all of their hires, they need only retain,
     in the case of hires subject to the qualification, documentation as
     to the full-time vacancies filled, the recruitment sources used,
     the date each vacancy was filled, and the recruitment sources of
     the hires. This information is pertinent to monitoring whether the
     broadcaster made reasonable, good faith efforts to recruit among
     persons who meet the applicable religious qualification.[^202]

139. **Public File**. We will adopt the requirement that broadcasters
     place in their public file annually, on the anniversary of the date
     they are due to file their renewal applications, an EEO public file
     report containing the following information: (1) a list of all
     full-time vacancies filled by the station employment unit during
     the preceding year, identified by job title; (2) for each such
     vacancy, the recruitment source(s) used to fill the specific
     vacancy (including organizations entitled to notification of
     vacancies pursuant to Prong 2, which should be separately
     identified), including the address, contact person, and telephone
     number of each source; (3) a list of the recruitment sources that
     referred the people hired for each full-time vacancy; data
     reflecting the total number of persons interviewed for full-time
     vacancies during the preceding year and, for each recruitment
     source used in connection with any such vacancies, the total number
     of interviewees referred by that source; and (4) a list and brief
     description of Prong 3 menu options implemented during the
     preceding year.[^203] Religious broadcasters with hires subject to
     a religious qualification need include, for full-time vacancies
     subject to the qualification, only the information called for
     in (1) and (2) above, along with information concerning the
     recruitment sources that referred the persons hired.[^204]

140. Some broadcasters object that documentation concerning a station's
     EEO efforts should not be made available to the public.[^205] To
     the contrary, as we indicated in the *Report and* Order, the public
     has an important role in monitoring broadcaster compliance with our
     EEO Rule.[^206] The EEO public file report is designed to
     facilitate meaningful public input. We recognize broadcaster
     concerns that the availability of this information could trigger
     unwarranted, even frivolous, filings.[^207] Nonetheless, the
     possibility of abuses by some does not warrant depriving the public
     of its right to participate in the process of monitoring and
     enforcing our EEO Rule, which directly impacts them.

141. We will also require that broadcasters post the EEO public file
     report on their web site, if they have one.[^208] The purpose of
     this requirement is to facilitate access by persons within the
     service area. We do not believe that our requirement to place EEO
     public file report information on a station's web site is
     unreasonable or overly burdensome. In the *Recon*, we denied NAB's
     request that we eliminate the requirement because of the alleged
     burden that it placed on broadcasters. We found that NAB had failed
     to establish the extent of any such burden or the costs involved in
     addressing them.[^209] In this proceeding, NAB cites data from
     another proceeding in which we proposed to require that television
     stations post their entire public file on their own web site or a
     state association web site.[^210] That data, however, pertains to
     the posting of as much as 14,000 pages of documentation. The
     requirement at issue here involves only a single document. Also, it
     does not require web posting unless the station already maintains a
     web site; it does not require that one be created. NAB provides no
     additional documentation as to the possible burden of this
     requirement beyond that which we found insufficient in the
     *Recon*.[^211] NAB also contends that the requirement to place the
     EEO public file report on a station's web site, if it has one,
     might deter stations that do not currently have web sites from
     initiating them. We find this suggestion speculative, at best.
     Finally, NAB objects to the requirement because it would make the
     EEO public file report available to persons outside of a station's
     community. As we indicated in the *Recon*, the purpose of the
     requirement is to facilitate access by persons within the station's
     service area. That persons outside the service area may also access
     it is immaterial.[^212]

142. As we indicated in the *Report and Order,*[^213] broadcasters are
     free to use any format in their public file report to avoid
     unnecessary duplication as long as the report clearly provides the
     information requested. For instance, if a broadcaster used the same
     recruitment sources for all its vacancies, it may maintain a single
     list of those sources, indicating that they were used for all
     vacancies. If a broadcaster used different sources for different
     vacancies, it may maintain a master list of all its sources and use
     a cross-reference system to show which sources were used for which
     vacancies.

143. The EEO public file report need not be routinely submitted to the
     Commission, except in two instances. The EEO public file reports
     covering the two-year period preceding the filing of a renewal
     application must be submitted with that application as an
     attachment to Form 396, and will be one basis for our review of the
     broadcaster\'s compliance at renewal time. Also, for stations
     subject to mid-term reviews, the EEO public file reports for the
     two-year period preceding the mid-term review must be filed with
     the Commission and will be one basis for mid-term reviews. Renewal
     and mid-term review procedures are discussed in greater detail
     below.

144. Because the filing dates for the EEO public file reports are tied
     to the date of filing of renewal applications, the due dates will
     apply to a given station regardless of when the licensee acquired
     the station. Consequently, if there is a substantial change of
     ownership requiring approval pursuant to FCC Form 314 or FCC Form
     315 during the one-year period covered by an EEO public file
     report, the new licensee must place the report in the public file
     by the due date. However, the information contained in the report
     would encompass only EEO efforts undertaken by the new licensee.

145. AWRT suggests that the EEO public file report be filed with the
     Commission annually or that reports for the four preceding years
     should accompany mid-term and renewal filings in order to provide a
     more complete picture of the licensee's EEO record.[^214] We will
     partially adopt this proposal by requiring EEO public file reports
     for the two years preceding the filing of mid-term reports and
     renewal applications. This will be sufficient for our ordinary
     review of licensees' EEO compliance and will cover the full
     two-year period that stations have to comply with the Prong 3 menu
     options. Of course, we will request additional reports and other
     information if we deem it necessary. Also, the public can bring to
     our attention any problems they perceive in the EEO public file
     reports that we do not review. As indicated, licensees will be
     required to retain the reports in their public file until their
     next renewal is granted.

146. The EEO public file report will be filed for station employment
     units, rather than only for individual stations. A "station
     employment unit" will be defined, as it was under our former Rule,
     as including a station or group of commonly owned stations in the
     same market that shared at least one employee.[^215] We will leave
     the definition of the "market" to each licensee's good faith
     discretion. In making this determination, however, a licensee
     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. We expect a
     licensee to be able to provide a reasonable explanation for its
     determination should it become an issue. Finally, 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.

147. If a station is subject to a time brokerage agreement, the
     licensee\'s EEO public file report should include data concerning
     only its own recruitment efforts for full-time positions and not
     the efforts of the broker. If a licensee is a broker of another
     station or stations in the same market as an employment unit
     including a station or stations of which it is the licensee, the
     licensee's EEO public file report should include data concerning
     its EEO efforts at both the owned and brokered stations. If a
     licensee-broker does not own a station in the same market as the
     brokered station, then it shall include information concerning its
     EEO efforts at the brokered station in the EEO public file report
     for its own station that is geographically closest to the brokered
     station. The same policy will apply to EEO forms filed at mid-term
     (where applicable) (Form 397) and at renewal (Form 396), discussed
     below. Non-licensee brokers are not required to file EEO public
     file reports because they are not licensees. If a broker is
     controlled directly or indirectly by a licensee or licensees,
     however, it should be considered a licensee-broker.

148. 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, so that there could
     arguably be two dates governing the placing of the EEO public file
     report in the public file because that date is based on the
     anniversary of the filing of the last renewal application. The same
     problem arises with respect to the filing of mid-term reports (FCC
     Form 397), discussed below. 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. There may be rare instances
     involving television stations, however, when it will be necessary
     for us to request a supplemental filing in order to comply with the
     statutory requirement that we conduct mid-term reviews of
     television licensees' EEO compliance.

149. An employment unit consisting of stations in more than one renewal
     group may select the renewal group that it will use for the purpose
     of determining the filing dates for its annual public file reports
     and its mid-term report, where applicable, 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.[^216]

150. There may also be circumstances in which 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.[^217] In these
     circumstances, the filing schedule for television stations should
     be used for purposes of filing the mid-term report (FCC Form 397)
     for the employment unit, if it is subject to the requirement to
     file a mid-term report. This report would cover all stations in the
     employment unit. Thus, there would be no need to file a separate
     mid-term report for the radio station(s). 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.[^218]

151. 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, discussed below, requires 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, as well as the report for the prior year. When 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.[^219] 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.

152. 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.[^220] However, LPTV stations are not
     required to maintain a public file. As indicated in the *Recon*, we
     will not expect them to prepare an EEO public file report, although
     LPTV stations with five or more full-time employees must comply
     with the recordkeeping requirements.[^221] Class A television
     stations, however, are subject to the requirement to maintain a
     public file and are fully subject to the EEO Rule, including the
     requirement to prepare an EEO public file report.

153. **Enforcement**. We will adopt the enforcement process proposed in
     the *Second NPRM*, which is similar to that adopted in the *Report
     and Order*, except that we are eliminating the requirement that
     broadcasters certify compliance with the EEO Rule in the second and
     sixth years of their license term. We will conduct mid-term review
     of television stations with five or more full-time employees and
     radio stations with more than ten full-time employees, using FCC
     Form 397. We treat television stations differently from radio
     stations because of the requirements of Section 334 of the
     Communications Act which does not permit us to exempt television
     stations with five to ten full-time employees from the mid-term
     requirement.

154. We will also review a licensee's compliance with our EEO Rule at
     renewal time. NAB urges that appropriate safeguards should be
     instituted so as to protect broadcasters from unwarranted or
     frivolous petitions to deny.[^222] Under Section 309(d)(1) of the
     Communications Act, parties in interest have a statutory right to
     file petitions to deny.[^223] In addition, it would not be
     desirable, to restrict the right of parties to file petitions to
     deny or informal objections alleging EEO violations because, as
     indicated, the public has a legitimate role in the enforcement of
     our EEO Rule.

155. We will also monitor EEO compliance through random audits and
     targeted investigations resulting from information received as to
     possible violations. Each year we will select for audit
     approximately five percent of all licensees in the radio and
     television services, ensuring that, even though the number of radio
     licensees is significantly larger than television licensees, both
     services are represented in the audit process. Initially, the
     inquiry may request the contents of the station\'s public file.
     Further inquiry or inquiries may be conducted requesting additional
     documentation of recruitment efforts that is not in the public
     file. Based on the circumstances of the case, the inquiry could
     potentially include, but not be limited to, 1) a request for data
     covering any period of the license term; and 2) interviews of
     witnesses, including any complainant and present or former station
     employees.

156. Licensees will be subject to a variety of sanctions and remedies
     for EEO Rule violations or deficiencies. Some examples of
     violations or deficiencies might include: engaging in employment
     discrimination in hiring or promotions; failure to file a mid-term
     review when due; failure to file an EEO public file report when
     due; failure to file Form 396 when due; misrepresentation of
     outreach efforts or other information; non-responsiveness or
     evasion in responding to a written Commission inquiry; failure to
     recruit for all vacancies absent exigent circumstances; failure to
     widely disseminate information concerning vacancies for full-time
     positions; failure to analyze routinely the adequacy of the various
     program elements in achieving broad outreach to all segments of the
     community; failure to undertake the required Prong 3 menu options;
     and failure to notify organizations that request vacancy notices.
     Also, it may constitute a violation of the EEO Rule if, based on
     all of the evidence, we determine that a licensee has attempted to
     evade our requirements through token or sham efforts.

157. We take the EEO rules and obligations we establish here very
     seriously, and fully expect broadcasters and MVPDs to do the same.
     We remind licensees that it is as true today as it was 20 years ago
     that a \"documented pattern of intentional discrimination would put
     seriously into question a licensee\'s character qualification to
     remain a licensee.\"[^224] We intend to carefully monitor
     compliance with our EEO rules. Sanctions and remedies that may be
     issued by the Commission for deficiencies in licensees\' EEO
     compliance include admonishments, reporting conditions,
     forfeitures, short term renewal of license, or designation for
     hearing for possible revocation of license or denial of renewal.
     The appropriate sanction or remedy will be determined on a
     case-by-case basis. Sanctions will be greater in cases involving
     recidivism, continuous EEO non-compliance, or intentional
     discrimination. In particular, if sufficiently egregious violations
     are found, we will not hesitate to designate for hearing.

158. We will also be taking steps to ensure that broadcasters, MVPDs,
     and the public are aware of and able to comply with the EEO rules
     and policies. First, we will continue to maintain an EEO page on
     the Commission\'s website.[^225] In addition, our Consumer &
     Governmental Affairs Bureau (CGB) will provide information to the
     public on the new rules adopted by the Commission. CGB will make a
     factsheet on the rules available to the public through our consumer
     centers and our website.[^226] Furthermore, Commission staff will
     continue to participate in conferences held throughout the country
     that deal with broadcast and MVPD EEO issues. Finally, as always,
     our EEO staff is available to answer more specific questions and
     provide informal guidance regarding the rules.[^227] We encourage
     the industry and the public to take advantage of these resources.

159. **Forms Relating to EEO Compliance**. We readopt the forms adopted
     in the *Report and Order*, incorporating the changes discussed
     above. Primarily, we eliminate the portion of the forms that
     provided for an election between Option A and Option B because our
     present Rule does not provide for an election. We also will not
     reissue the Initial Election Statement, which required a licensee
     to choose between Option A and Option B. We are addressing here
     only forms relating to our EEO outreach requirements. As indicated,
     FCC Form 395-B, the Annual Employment Report, which is being
     deferred, is unrelated to the implementation and enforcement of our
     EEO program.

160. We readopt, with modifications, FCC Form 396, which is filed by
     broadcasters as part of their renewal applications. As indicated,
     we will delete the Option A/Option B election. The form as adopted
     by the *Report and Order* also required the broadcaster to certify
     that it complied with the EEO Rule during the two-year period
     preceding the filing of the report; to attach a copy of its EEO
     public file for the preceding year; and to provide a narrative
     statement demonstrating how the station achieved broad outreach
     during the preceding two years. StBAs objects to the certification
     requirement because of the risk that a broadcaster would be charged
     with the character violation of misrepresentation arising from a
     genuine misunderstanding of the Rule.[^228] Without passing on
     StBAs' objection, we find the certification requirement now to be
     unnecessary given that we are requiring the submission of the EEO
     public file report from which we can make our own determination as
     to the licensee's compliance. In addition, the licensee must still
     certify to the accuracy of the forms it submits to the Commission;
     it just need not draw a legal conclusion as to whether the facts it
     submits demonstrate compliance with our rules. Accordingly, we will
     modify the form to eliminate the certification requirement. We
     will, however, require the submission of the EEO public file report
     due at the time of the filing of the Form 396 along with the form
     filed one year before that. This is because we allow two years for
     the performance of the Prong 3 menu options. We recognize that in
     some instances a station may have been sold during the prior two
     years. In that case, the licensee at the time of renewal need only
     submit EEO public file reports relating to its own operation of the
     station.

161. MMTC urges that we should include in the FCC Form 396 a requirement
     that the licensee report whether it intends to change the elements
     of its EEO program during the coming license term.[^229] We decline
     to adopt this proposal because licensees are free to alter the
     elements of their EEO programs as circumstances warrant. No purpose
     would be served by requiring licensees to anticipate at renewal
     time any possible changes that might be implemented over the
     ensuing eight year license term and potentially lock them into a
     particular program during that time. To the contrary, we expect and
     anticipate that licensees will continuously evaluate their
     compliance programs and improve upon them whenever and wherever
     possible.

162. The version of Form 396 adopted by the *Report and Order* included
     the following question: "Have any complaints been filed before any
     body having competent jurisdiction under federal, state,
     territorial or local law, alleging unlawful discrimination in the
     employment practices of the station(s)?" In the *Second NPRM*, we
     stated that the form required the reporting of "pending"
     discrimination complaints.[^230] However, we did not clarify the
     period of time to which the word "pending" referred, *e.g.*,
     pending at any time during the most recent license term or pending
     at the time a renewal application is filed. StBAs urges that we
     should exclude from the scope of our reporting requirement
     complaints that have been resolved without an adverse finding
     against the broadcaster prior to the filing of the renewal
     application.[^231] MMTC has no objection to excluding complaints
     that were filed and subsequently resolved on the merits in the
     broadcaster's favor. It notes, however, that complaints disposed of
     without a ruling on the merits, *e.g*., on procedural grounds, may
     remain relevant and could lead to relevant evidence of
     discrimination.[^232] We agree that complaints dismissed on
     procedural grounds or pursuant to a settlement may remain relevant.
     We wish to avoid unnecessary litigation, however, as to whether a
     given complaint was resolved on the merits or dismissed for
     procedural reasons. Accordingly, we will require the reporting of
     all complaints filed during the most recent license term,
     consistent with our past practice. This will avoid unnecessary
     litigation and involves little additional burden. Form 396 requests
     information concerning the disposition or current status of the
     complaint, and the Commission will consider complaints only to the
     extent they are deemed relevant.

163. FCC Form 396-A is to be used for applications for the construction
     of a new broadcast station or for the sale of an existing broadcast
     station. We will readopt this form but delete references to the
     Option A/Option B election.

164. We adopted in the *Report and Order* FCC Form 397, "Broadcast
     Statement of Compliance," which was to be submitted in the second,
     fourth, and sixth years of the license term for the purpose of
     certifying whether the licensee's station employment unit complied
     with the EEO Rule during the preceding two years. In the *Second
     NPRM*, we proposed to use the Form 397 only for the purpose of
     filing mid-term reviews, renaming it the "Broadcast Mid-term
     Report." We will adopt this proposal. Thus, Form 397 will be filed
     by licensees subject to mid-term review. We will modify Form 397 to
     eliminate the reference to an election. In addition, consistent
     with our discussion concerning Form 396, we will eliminate the
     compliance certification requirement and instead require submission
     of EEO public file reports for the two years preceding the filing
     (unless the earlier report does not pertain to the current licensee
     because of a sale). Two groups of television stations would be
     required by our new rules to file mid-term reports in 2003: New
     Jersey and New York filings would be due by February 1, 2003, and
     Delaware and Pennsylvania filings would be due by April 1, 2003.
     Because of the extremely short time between the anticipated
     effective date of the rules and the filing dates, we will not
     require stations in these groups to file mid-term reports in 2003.

165. **Provisions for Small Stations and Small Markets**. The Rule
     adopted by the *Report and Order* exempted from the outreach
     provisions (but not the nondiscrimination provisions) station
     employment units that had fewer than five full-time (30 hours per
     week or more) employees. As noted, a "station employment unit"
     referred to a station or group of commonly owned stations in the
     same market that shared at least one employee. We will include this
     exemption in our new Rule. We also provided in the *Report and
     Order* that station employment units with five to ten full-time
     employees would be required to perform only two, rather than four,
     Prong 3 menu options every two years.[^233] We will incorporate
     this requirement in our new Rule. In addition, we will extend it to
     certain small market stations, as discussed below. We further
     provided in the *Report and Order* that radio station employment
     units with five to ten full-time employees would be exempt from the
     mid-term review requirement. We did not extend this relief to
     television stations because of the requirements of Section 334 of
     the Communications Act.[^234] We will include this exemption for
     radio in our new Rule.

166. In the *Second NPRM*, we asked whether we should expand the
     exemption for small stations to include employment units with ten
     or fewer employees. We also asked whether we should modify the
     requirement that stations with more than 10 full-time employees
     complete four menu options every two years. Smaller stations with
     five to 10 or fewer full-time employees are required to complete
     two menu options every two years. We further asked whether we
     should treat all stations with five or more full-time employees
     that are located in smaller markets like smaller stations.[^235]
     Having reviewed the record, we find no basis for increasing the
     pertinent exemptions, except that we find some modification
     warranted with respect to the menu option requirements applicable
     to stations in smaller markets.

167. NAB supports exempting stations with fewer than ten full-time
     employees. It states that such stations face unique obstacles in
     complying with our Rule because of a lack of personnel and
     resources, difficulties in competing with larger stations, a lack
     of access to the resources to implement Prong 3 menu options, and
     the unavailability of the alternative provided by Option B of the
     former Rule. It notes that the *Report and Order* previously
     rejected an increase in the general exemption because small
     stations provide entry-level opportunities in the broadcast
     industry.[^236] NAB questions the continued viability of this
     assumption. NAB also contends that stations in smaller markets face
     difficulties similar to those facing stations with fewer than ten
     full-time employees, especially in complying with Prong 3 menu
     options.[^237] The Association of Public Television Stations
     supports an exemption for stations with ten or fewer employees
     because of the funding problems of small public television
     stations, especially those outside of top 100 markets, and
     difficulties experienced in attracting and retaining minority
     employees.[^238] LTVG urges that we should exempt stations with
     fewer than 100 employees, to parallel EEOC rules.[^239] MMTC, NOW,
     AWRT, NAACP, and the Lawyers' Committee for Civil Rights Under Law
     oppose an increase in the exemptions, citing primarily the
     opportunity for entry into the industry provided by small
     stations.[^240]

168. With one exception, we find no basis in the record to provide
     additional exemptions from our Rule beyond those referenced above.
     First, we reject as unsupported in the record any suggestion that
     the Rule we adopt today imposes unreasonable burdens on small
     broadcasters. As a general matter, the Rule imposes minimal
     burdens. In addition, small broadcasters are permitted to perform
     fewer menu options, and most likely will have fewer hires,
     resulting in fewer records to keep and fewer job vacancies
     requiring recruitment under the Rule. Further, as we found in the
     *Report and Order*, small stations provide entry-level
     opportunities in the broadcast industries and make up approximately
     1/3 of the broadcast industry.[^241] If we were to exempt such a
     large number of stations from the EEO Rule \-- stations that may
     provide entry level opportunities for people new to broadcasting --
     we would undermine the central purpose of our EEO Rule. We decline
     to do so.

169. We find that it would be appropriate, however, to modify our Prong
     3 menu option requirement for stations in smaller markets. We
     recognize that smaller markets may not have the resources in the
     community to support some of the activities contemplated in
     Prong 3. We did not address this problem in the *Report and Order*
     because small market stations that found the menu option
     requirement burdensome could elect to proceed under Option B. That
     alternative, however, will not be available under our new Rule. We
     will accordingly provide that small market stations will be
     required to perform only two, rather than four, menu options during
     a two year period.

170. We will define the scope of this exemption as extending to any
     station employment unit consisting solely of a station or stations
     licensed to a community that is located in a county that is outside
     of all metropolitan areas, as defined by OMB, or is located in a
     metropolitan area that has a population of fewer than 250,000
     persons. This will operate to reduce requirements for stations in
     most markets below the 100 largest markets using definitional
     criteria that are readily ascertainable from government
     sources.[^242]

171. NAB requests that we reinstate a policy from our pre-*Lutheran
     Church* rules that did not require "the submission of information
     on a station's EEO efforts to recruit minorities from those
     stations in markets with a minority labor force of less than five
     percent."[^243] In the *Recon*, we denied a similar request.[^244]
     NAB has presented no basis for a different result now. In
     particular, NAB ignores the fact that the policy in question was
     never a wholesale exemption from the Rule because women are present
     in all markets. In any event, our new Rule does not require that
     broadcasters target minorities. There is accordingly no need to
     exempt them from the requirement of a prior rule that no longer is
     applicable.

172. In the *Recon*, we adopted a policy pursuant to which an owner who
     has a controlling interest (50 percent or greater voting control)
     in a licensee would not be considered a station employee for
     purposes of the EEO Rule, even if he or she worked at the station.
     We concluded that such an owner's employment at the station would
     be more an incident of ownership rather than a normal employment
     relationship because the owner could not be in any normal sense
     hired or fired. We declined to extend this policy to lesser
     ownership interests because the circumstances pertaining to their
     employment might vary widely and we could not assume that the
     employment was primarily an incident of ownership.[^245] Fletcher,
     Heald & Hildreth, P.L.C. ("FHH"), on behalf its clients, filed a
     petition for reconsideration, urging that owners with 20 percent or
     greater interests should be not be treated as "employees" for
     purposes of the EEO Rule. We had not acted on FHH's petition when
     the Court's decision in *Association* was issued. Accordingly, we
     asked for comments on FHH's proposal in the *Second NPRM*.[^246] It
     renews its proposal in its comments filed in response to the
     *Second NPRM*.

173. We will adopt FHH's suggestion. Thus, we will not consider owners
     holding a 20 percent or greater voting interest in a licensee as
     station "employees" for EEO purposes. This will be subject to the
     proviso, however, that no single owner has positive control
     (greater than 50 percent voting control) of the licensee. In that
     circumstance, the principal enjoying positive control would be in a
     position to determine whether other stockholders could be employed
     at the station, and only he or she could properly claim employment
     as an incident of ownership. Absent that circumstance, it is
     reasonable to believe that a 20 percent or greater owner's
     employment position is an incident of ownership. Someone who owns a
     20 percent interest in a licensee company is not truly an employee
     of the licensee, holding a position that would be subject to
     recruitment, and thus should be permitted to work at the station
     without first requiring outside recruitment. FHH suggests that we
     should, as a safeguard, require that the owners have made a capital
     contribution. We do not find this necessary. Legitimate ownership
     interests may exist that do not involve a capital contribution. In
     the event of alleged abuse of this exception, we will consider all
     relevant factors, including the extent of an asserted owner's
     capital contribution to determine the legitimacy of a claimed
     ownership interest.

174. LTVG suggests that broadcasters should be permitted to hire owners
     with two percent or greater equity or their immediate family
     without recruitment. The justification cited is to allow the hiring
     of family members in a family-owned business.[^247] In the case of
     interests of less than 20 percent, however, it cannot be assumed
     that a position at the station is an incident of ownership. We
     further find no basis for providing an exemption from the
     recruitment requirement based on a family relationship with an
     owner because it could disadvantage possibly better qualified
     outside applicants. Accordingly, we decline to adopt this proposal.

     [3. MVPD EEO Program Requirements]{.underline}

     a\. [Rules and Policies]{.underline}

175. We will adopt substantially the same outreach program,
     recordkeeping and reporting requirements for MVPDs, as we have for
     broadcasters. The only distinctions will arise in light of the
     specific requirements imposed by Section 634 of the Communications
     Act. Thus, we monitor the EEO programs pursuant to annual reports
     which have contained employment and program data, as required by
     statute. We will be creating a new form, described below, that will
     contain only program data. As mentioned above, we are deferring
     consideration of a new form for MVPDs that requires employment
     data. Because our review of MVPD EEO compliance is an annual review
     pursuant to Section 634, we define the Prong 3 menu options
     requirement for MVPDs in terms of performing two initiatives
     annually for those with more than ten full-time employees or one
     initiative annually for those with six to ten full-time employees.
     NCTA generally supported our proposed rules in its Comments.

176. With respect to the definition of "community" for the purpose of
     determining broad outreach, NCTA argues that cable operators should
     be able to define their "community" as encompassing only the areas
     they are franchised to serve.[^248] As noted in paragraph 92 above,
     we are not adopting the proposal in the *Second Notice* to use MSAs
     as a means of defining "community" for the purpose of determining
     broad outreach. Rather, we are leaving the definition of
     "community" for this purpose to the reasonable good faith
     discretion of the entity concerned. We will apply the same policy
     to MVPDs. MVPDS should use pertinent criteria discussed in
     paragraph 92, *supra*, including the location of the system,
     pertinent market definitions adopted by public agencies or
     commercial services, and requests for notices of job vacancies from
     locally-based community groups. They should also consider what
     areas actually produce job applicants. MVPDs should engage in broad
     outreach throughout the entire local community from which they can
     reasonably expect to elicit applicants, whether or not that
     community is defined by its franchise area.

177. American Cable Association ("ACA"), a trade association of small
     system and small market cable operators, urges us to provide an
     exemption from the outreach requirements and streamlined
     recordkeeping and reporting requirements to cable systems with
     fewer than 15,000 subscribers or, in the alternative, with ten or
     fewer employees.[^249] ACA premises its request on the fact that
     the Commission previously provided relief to systems with fewer
     than 15,000 subscribers in the context of rate regulation.[^250]
     The EEO requirements we are adopting, however, are not comparable
     to rate regulation and we do not believe that cable systems
     employing six or more full-time employees will experience hardship
     in complying with the outreach requirements. Moreover, ACA
     estimates that the requested relief might extend to systems
     employing 14,000 of what ACA estimates to be a total of 131,000
     employees in the cable industry.[^251] If correct, more than 10
     percent of the industry would be exempt under ACA's proposal. We
     accordingly decline to adopt any additional provisions relating to
     small systems beyond those already proposed in the *Second NPRM*,
     except that we will, as in the case of broadcasters, adopt a
     provision requiring the performance of fewer Prong 3 menu options
     by systems in smaller markets. Thus, smaller market cable
     operators, as well as other MVPDs, will be required to perform only
     one menu option per year. We will use the same definition of a
     small market that we are using for broadcast stations.

178. MVPD compliance with the EEO requirements is monitored pursuant to
     annual reports filed by MVPDs: FCC Form 395-A (for cable operators)
     and FCC Form 395-M (for other MVPDs). The only substantive
     modification required by the new rules adopted today is the
     elimination of the Option A/Option B election. In addition, we will
     combine these forms. The two forms are virtually identical except
     for a section in the Form 395-A requiring cable operators to list
     the communities in which they operate. In view of the similarity of
     the two forms, we do not find any necessity for having separate
     forms for cable operators and other MVPDs. Both forms request
     information concerning the entity's EEO outreach program. In
     addition, both forms request information as to the gender and
     racial/ethnic composition of the entity's workforce, analogous to
     the broadcast Form 395-B. As in the broadcast context, the data
     concerning the entity's workforce is no longer pertinent to the
     administration of our EEO outreach requirements. We will
     accordingly adopt at this time a single form, FCC Form 396-C, which
     will include the portions of Forms 395-A and 395-M relating to EEO
     outreach, but not the portion eliciting data concerning the
     entity's workforce, for use by all MVPDs. We will consider the
     adoption of a new form for eliciting workforce data from MVPDs as
     part of the future Report and Order in which we will also address
     the broadcast Form 395-B.

     **C. Constitutional Issues**

179. StBAs argues that requiring broadcasters to disclose publicly the
     racial and gender composition of their employees on FCC Form 395-B
     would create constitutional problems because the Commission will
     use the data in EEO enforcement decisions and private groups will
     use the data to pressure broadcasters to adopt race or gender-based
     hiring policies by pursuing actions against them before the
     Commission.[^252] According to StBAs, it was this kind of pressure,
     whether applied by government regulators or by third parties, that
     the court found unconstitutional in *Lutheran Church*.

180. As discussed earlier, the Commission is deferring consideration of
     Form 395-B at this time. The court in *Association* upheld Option A
     of the EEO Rule as constitutional because it found that
     broadcasters were not pressured to recruit minorities and women
     under Option A. The recruitment outreach provisions we are adopting
     in this *Second Report and Order and Third Notice of Proposed Rule
     Making* are the same in all material respects as the basic
     requirements of Option A. In enforcing the EEO Rule, the Commission
     will not pressure employers to favor anyone on the basis of race,
     ethnicity, or gender. Therefore, as a race and gender neutral
     regulation, the EEO Rule we are adopting today raises no equal
     protection concerns.

181. LTVG alleges that broadcasters should not be required to post their
     EEO public file reports on their websites because this requirement
     is "probably unconstitutional under the First Amendment." Radio
     Licensees allege that the Prong 2 and Prong 3 requirements are
     unconstitutional and beyond the FCC's statutory authority.[^253]
     Neither party provides any basis for their assertions, however, and
     we are unable to find any.[^254]

     **V. THIRD NOTICE OF PROPOSED RULE MAKING**

182. The EEO rules apply to all \"full-time employees,\" defined as
     those whose regular work schedule is 30 hours or more a week. We
     have previously applied a \"substantial compliance\" policy to
     positions involving less than 30 hours a week, although we did not
     require reporting of this effort and did not focus on part-time
     hires in our review of EEO programs. As discussed above, we do not
     have sufficient evidence in the current record to make an informed
     decision about whether and how to apply the new EEO rules and
     policies to part-time positions, defined as less than 30 hours per
     week.[^255] We are thus seeking comment on this issue. In
     particular, we seek comment on how many and what types of positions
     in the broadcast and MVPD industries fall into this category, what
     is the significance of these positions in terms of entry into
     broadcasting, how burdensome compliance with the recruitment,
     record-keeping, and reporting requirements for all or some
     part-time positions would be for broadcasters and MVPDs, and
     whether the requirements applicable to part-time positions should
     be the same as or different from those applicable to full-time
     positions. We also seek comment on whether we should set a minimum
     number of hours for a part-time position to be covered by the rules
     and, if so, what that minimum should be.

     **VI. CONCLUSION**

183. In this *Second Report and Order and Third Notice of Proposed Rule
     Making*, we adopt a new broadcast EEO Rule and set of policies, and
     we amend our MVPD EEO rules and policies. We remain committed both
     to prohibiting discrimination in employment and requiring broad and
     inclusive outreach in recruitment by broadcasters and cable
     entities.

     **VII.** **PROCEDURAL MATTERS AND ORDERING CLAUSES**

184. *Final Regulatory Flexibility Analysis*. As required by the
     Regulatory Flexibility Act (\"RFA\"), 5 U.S.C. § 603, an Initial
     Regulatory Flexibility Analysis (\"IRFA\") was incorporated in the
     *Second* *NPRM*. The Commission sought written public comments on
     the possible significant economic impact of the proposed policies
     and rules on small entities in the *NPRM*, including comments on
     the IRFA. Pursuant to the Regulatory Flexibility Act, 5 U.S.C. §
     604, a Final Regulatory Flexibility Analysis (\"FRFA\") is
     contained in Appendix B.

185. *Paperwork Reduction Act of 1995 Analysis*. The actions herein have
     been analyzed with respect to the Paperwork Reduction Act of 1995
     and found to impose new or modified reporting and recordkeeping
     requirements or burdens on the public. Implementation of these new
     or modified reporting and recordkeeping requirements will be
     subject to, and become effective upon, approval by the Office of
     Management and Budget as prescribed by the Act.

186. *Ex Parte Rules*. With respect to the *Third Notice of Proposed
     Rule Making* (*Third NPRM*), this is a permit-but-disclose notice
     and comment proceeding. Ex parte presentations are permitted except
     during the Sunshine Agenda period, provided they are disclosed as
     provided in the Commission\'s Rules. *See generally* 47 CFR
     Sections 1.1202, 1.1203, and 1.1206(a).

187. *Initial Regulatory Flexibility Analysis*. With respect to the
     *Third NPRM*, an Initial Regulatory Flexibility Analysis (\"IRFA\")
     is contained in the Appendix hereto. As required by Section 603 of
     the Regulatory Flexibility Act, the Commission has prepared an IRFA
     of the possible significant economic impact on small entities of
     the proposals contained in this *Third NPRM*.[^256] Written public
     comments are requested on the IRFA. Comments on the IRFA must be
     filed in accordance with the same filing deadlines as comments on
     the *Third NPRM*, but they must have a distinct heading designating
     them as responses to the IRFA.

188. *Comments and Reply Comments*. Pursuant to Sections 1.415 and 1.419
     of the Commission\'s rules, 47 C.F.R. §§ 1.415, 1.419, interested
     parties may file comments on or before December 20, 2002, and reply
     comments on or before January 6, 2003. Comments may be filed using
     the Commission\'s Electronic Comment Filing System (ECFS) or by
     filing paper copies. *See Electronic Filing of Documents in
     Rulemaking Proceedings*, 63 Fed. Reg. 24,121 (1998).

189. Comments filed through the ECFS can be sent as an electronic file
     via the Internet to \<http://www.fcc.gov/e-file/ecfs.html\>.
     Generally, only one copy of an electronic submission must be filed.
     If multiple docket or rulemaking numbers appear in the caption of
     this proceeding, however, commenters must transmit one electronic
     copy of the comments to each docket or rulemaking number referenced
     in the caption. In completing the transmittal screen, commenters
     should include their full name, Postal Service mailing address, and
     the applicable docket or rulemaking number. Parties may also submit
     an electronic comment by Internet e-mail. To get filing
     instructions for e-mail comments, commenters should send an e-mail
     to ecfs@fcc.gov, and should include the following words in the body
     of the message, \"get form \<your e-mail address\>.\" A sample form
     and directions will be sent in reply. Parties who choose to file by
     paper must file an original and four copies of each filing. If more
     than one docket or rulemaking number appear in the caption of this
     proceeding, commenters must submit two additional copies for each
     additional docket or rulemaking number. All filings must be sent to
     the Commission\'s Secretary, Marlene H. Dortch, Office of the
     Secretary, Federal Communications Commission, 445 Twelfth Street,
     S.W., TW-A325, Washington, D.C. 20554.

190. Parties who choose to file by paper should also submit their
     comments on diskette. These diskettes should be submitted to: Wanda
     Hardy, 445 Twelfth Street, S.W., Room, 2-C221, Washington,
     D.C. 20554. Such a submission should be on a 3.5 inch diskette
     formatted in an IBM compatible format using Word 97 or compatible
     software. The diskette should be accompanied by a cover letter and
     should be submitted in \"read only\" mode. The diskette should be
     clearly labeled with the commenter\'s name, proceeding (including
     the docket number in this case, MM Docket No. 98-204), type of
     pleading (comment or reply comment), date of submission, and the
     name of the electronic file on the diskette. The label should also
     include the following phrase \"Disk Copy - Not an Original.\" Each
     diskette should contain only one party\'s pleadings, preferably in
     a single electronic file. In addition, commenters must send
     diskette copies to the Commission\'s copy contractor, Qualex
     International, Portals II, 445 12th Street, S.W., Room CY-B402,
     Washington, DC 20554.

191. Comments and reply comments will be available for public inspection
     during regular business hours in the FCC Reference Center, Federal
     Communications Commission, 445 Twelfth Street, S.W., CY-A257,
     Washington, D.C. 20554. Persons with disabilities who need
     assistance in the FCC Reference Center may contact Bill Cline
     at (202) 418-0270, (202) 418-2555 TTY, or <bcline@fcc.gov>.

192. This document is available in alternative formats (computer
     diskette, large print, audio cassette, and Braille). Persons who
     need documents in such formats may contact Brian Millin at (202)
     418-7426, TTY (202) 418-7365, or <bmillin@fcc.gov>.

193. *Initial Paperwork Reduction Act of 1995 Analysis*. This *Third*
     *NPRM* contains either a proposed or modified information
     collection in that part-time hires could potentially be subject to
     information collection requirements. As part of our continuing
     effort to reduce paperwork burdens, we invite the general public
     and the Office of Management and Budget (OMB) to take this
     opportunity to comment on the information collections contained in
     this *Second* *NPRM*, as required by the Paperwork Reduction Act of
     1995, Pub. L. No. 104-13. Public and agency comments are due at the
     same time as other comments on this *Third* *NPRM*; OMB comments
     are due 60 days from the date of publication of this *Third* *NPRM*
     in the Federal Register. Comments should address: (a) whether the
     potential collection of information is necessary for the proper
     performance of the functions of the Commission, including whether
     the information shall have practical utility; (b) the accuracy of
     the Commission's burden estimates; (c) ways to enhance the quality,
     utility, and clarity of the information collected; and (d) ways to
     minimize the burden of the collection of information on the
     respondents, including the use of automated collection techniques
     or other forms of information technology. In addition to filing
     comments with the Secretary, a copy of any comments on the
     information collections contained herein should be submitted to
     Judy Boley, Federal Communications Commission, Room 1-C804, 445
     Twelfth Street, S.W., Washington, D.C. 20554, or via the Internet
     to <jboley@fcc.gov> and to Edward Springer, OMB Desk Officer, 10236
     NEOB, 725 17^th^ Street, N.W., Washington, D.C. 20503, or via the
     Internet to Edward.Springer@omb.eop.gov.

194. *Authority*. This *Third NPRM* is issued pursuant to 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.

195. Accordingly, IT IS 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, this *Second* *Report and Order and
     Third Notice of Proposed Rule Making* IS ADOPTED, and Part 73 and
     Part 76 of the Commission\'s Rules ARE AMENDED as set forth in
     attached Appendix C. It is our intention in adopting these rule
     changes that, if any provision of the rules, or the application
     thereof to any person or circumstance, is held to be unlawful, the
     remaining portions of the rules not deemed unlawful and the
     application of such rules to other persons or circumstances shall
     remain in effect to the fullest extent permitted by law.

196. IT IS FURTHER ORDERED that the late-filed comments and reply
     comments in this proceeding are considered as part of the record in
     this proceeding.

197. IT IS FURTHER ORDERED that, pursuant to the Congressional Review
     Act, the new rules and amendments set forth in Appendix C WILL
     BECOME EFFECTIVE either 60 days after their publication in the
     Federal Register or upon receipt by Congress of a report in
     compliance with the Congressional Review Act, 5 U.S.C. § 801,
     whichever is later, and the information collection contained in
     these rules will become effective 60 days after publication in the
     Federal Register, following OMB approval, unless a notice is
     published in the Federal Register stating otherwise. We will not
     require television broadcast licensees to file EEO mid-term reports
     in 2003.

198. Upon the effective date of the rules adopted herein, our action
     suspending certain of our former rules in *Suspension of the
     Broadcast and Cable Equal Employment Opportunity Outreach Program
     Requirements*, 16 FCC Rcd 2872 (2001) (*Suspension Order*) WILL BE
     VACATED, except that Sections 73.3612 of the Commission's Rules, 47
     C.F.R. § 73.3612 (Annual Employment Report) and 76.1802 of the
     Commission's Rules, 47 C.F.R. § 76.1802 (Equal Employment
     Opportunity) will remain suspended in accordance with the terms of
     the *Suspension Order* pending further action on workforce data
     collection issues, as discussed above.

199. IT IS FURTHER ORDERED that the Commission\'s Consumer and
     Governmental Affairs Bureau, Reference Information Center, SHALL
     SEND a copy of this *Second Report and Order and Third Notice of
     Proposed Rule Making*, including the Final Regulatory Flexibility
     Analysis, to the Chief Counsel for Advocacy of the Small Business
     Administration.

200. IT IS FURTHER ORDERED that MM Docket No. 98-204 will remain open
     for the limited purpose of considering the issues raised in the
     *Third Notice of Proposed Rule Making*, as discussed above, and to
     facilitate any additional proceedings upon further order of the
     Commission.

FEDERAL COMMUNICATIONS COMMISSION

Marlene H. Dortch

Secretary

**APPENDIX A**

**LIST OF COMMENTING PARTIES**

**[Comments]{.underline}**

**1. American Cable Association (ACA)**

**2. American Federation of Television and Radio Artists (AFTRA)**

**3. American Women in Radio and Television, Inc. (AWRT)**

**4. Association of America's Public Television Stations (APTS)**

**5. Walt Baker**

**6. Joseph Belisle**

**7. Broadcast Compliance Services**

**8. John Bronikowski**

**9. Cox Communications, Inc. (Cox)**

**10. Curators of the University of Missouri (University)**

**11. Fletcher, Heald & Hildreth, P.L.C. (FH&H)**

**12. Golden Orange Broadcasting, Inc. (Golden Orange)**

**13. Lawyer's Committee for Civil Rights Under Law, et al. and People
for the**

**American Way Foundation (LCCR and PFAWF)**

**14. Local Television Group (LTVG)**

**15. Media Captioning Services (MCS)**

**16. Mesquite Independent School District (MISD)**

**17. Minority Media and Telecommunications Council, et al. (MMTC)**

**Office of Communication of the United Church of Christ, Inc.,**

**African American Media Incubator, AFTRA, Alliance for Community
Media,**

**Alliance for Public Technology, American Civil Liberties Union,
American**

**Hispanic Owned Radio Association, American Indians in Film, Asian**

**American Journalists Association, Asian American Media Development,
Inc.,**

**Black Citizens for a Fair Media, Black College Communication
Association,**

**Black Entertainment and Sports Lawyers Association, Black
Entertainment**

**and Telecommunications Association, Civil Rights Forum on
Communications**

**Policy, Cleveland Talk Radio Consortium, Cultural Environment
Movement,**

**Fairness and Accuracy in Reporting, League of United Latin American**

**Citizens, Minorities in Communications Division of the Association
for**

**For Education in Journalism and Communications, Minority Business**

**Enterprise Legal Defense and Education Fund, NAMIC, Inc.,**

**(National Association of Minorities in Communications), National
Asian**

**American Telecommunications Association, National Asian Pacific
American**

**Legal Consortium, National Association for the Advancement of
Colored**

**People, National Association of Black Journalists, National
Association of**

**Black Owned Broadcasters, National Association of Black
Telecommunications**

**Professionals, National Association of Hispanic Journalists,
National**

**Association of Hispanic Publications, National Bar Association,
National**

**Association of Hispanic Organizations, National Council of La Raza,**

**National Council of the Churches of Christ in the United States,
National**

**Hispanic Foundation for the Arts, National Hispanic Media Coalition,**

**National Indian Telecommunications Institute, National Latino**

**Telecommunications Institute, National Latino Telecommunications**

**Taskforce, National Newspaper Publishers Association, National Urban**

**League, Native American Journalists Association, Native American**

**Public Telecommunications, Puerto Rican Legal Defense & Education
Fund,**

**San Diego Community Broadcasting School, Inc., Telecommunications**

**Research and Action Center, UNITY: Journalists of Color, Inc.,
Women's**

**Institute for Freedom of the Press**

**18. National Association of Broadcasters (NAB)**

**19. National Association for the Advancement of Colored People
(NAACP)**

**20. National Cable & Telecommunications Association (NCTA)**

**21. National Public Radio (NPR)**

**22. National Religious Broadcasters (NRB)**

**23. NOW, et al.**

**24. Russell Oasis**

**25. Radio One, Inc. (Radio One)**

**26. State Broadcasters Associations (broadcast associations in 49
states and**

**the District of Columbia and Puerto Rico) (StBAs)**

**27. State University of New York**

**28. School Board of Broward County, Florida (Broward)**

**29. Trinity Christian Center of Santa Ana, Inc., d/b/a Trinity
Broadcasting**

**Network (TBN)**

**30. Various Radio Licensees**

**31. Doreen Vincent (Ability Today, Inc.)**

**[Reply Comments]{.underline}**

**1. American Cable Association (ACA)**

**2. American Women in Radio and Television, Inc. (AWRT)**

**3. Named State Broadcasters Associations (49 States, the District of**

**Columbia and Puerto Rico) (StBAs)**

**4. The Lutheran Church-Missouri Synod (Lutheran Church)**

**5. Minority Media & Telecommunications Council, et al. (MMTC)**

**6. National Association of Broadcasters (NAB)**

**7. National Cable Television Association (NCTA)**

**8. North Carolina Association of Broadcasters (NCAB)**

**9. NOW, et al. (National Organization for Women, NOW Legal Defense**

**and Educational Fund, Feminist Majority Foundation, Philadelphia**

**Lesbian and Gay Task Force, Women's Institute for Freedom of the**

**Press)**

**[EEO *En Banc* Hearing Commenters]{.underline}**

**1. Ann Arnold, Executive Director, Texas State Broadcasters
Association**

**2. Tom Baxter, President, Time Warner Cable, AOL/TW**

**3. Linda Berg, Political Director, National Organization for Women**

**4. Reverend Robert Chase, Executive Director, Office of
Communications, United**

**Church of Christ**

**5. Belva Davis, Special Projects Reporter, KQED-TV, San Francisco,
CA**

**6. Joan E. Gerberding, President, American Women in Radio and
Television**

**7. Gregory Hessinger, National Executive Director, American
Federation**

**of Radio and Television Artists**

**8. Catherine Hughes, Chief Executive Officer, Radio One, Inc.**

**9. Michael Jack, President and General Manager, WRC-TV**

**10. Marilyn Kushak, Vice President, Midwest Family Broadcasters**

**11. Hugh Price, President and Chief Executive Officer, National Urban
League**

**12. Ester Renteria, President, Hispanic Americans for Fairness in
Media**

**13. Henry Rivera, Former FCC Commissioner, Partner at Shook, Hardy &
Bacon**

**14. Art Torres, President, Walter Kaitz Foundation**

**15. Charles Warfield, President and Chief Operating Officer, ICBC
Broadcasting**

**Holdings, Inc.**

**16. Steve White, Senior Vice President, AT &T Broadband**

**APPENDIX B**

**FINAL REGULATORY FLEXIBILITY ANALYSIS**

As required by the Regulatory Flexibility Act (RFA),[^257] an Initial
Regulatory Flexibility Analysis (IRFA) was incorporated into the
*Second* *Notice of Proposed Rule Making (Second NPRM)* in this
proceeding.[^258] The Commission sought written public comments on the
possible significant economic impact of the proposed policies and rules
on small entities in the *Second* *NPRM*, including comments on the
IRFA. This Final Regulatory Flexibility Analysis (FRFA) conforms to the
RFA.[^259]

**A.** **Need for, and Objectives of, the Proposed Rule Changes:**

This *Second Report and Order and Third Notice of Proposed Rule Making*
(*Second Report and Order)* adopts new equal employment opportunity
(EEO) rules and policies for broadcasters and multi-channel video
program distributors (MVPDs) consistent with the decision of the U.S.
Court of Appeals for the District of Columbia Circuit in *MD/DC/DE
Broadcasters Association v. FCC*, 236 F.3d 13, *rehearing den.* 253 F.3d
732 (D.C. Cir. 2001), *cert. denied*, 122 S.Ct. 920 (2002)
(*Association*). The Court therein found unconstitutional one of two
options for achieving broad outreach provided by the broadcast EEO
outreach requirements adopted in the *Report and Order in MM Docket Nos.
98-204 and 96-16*, 15 FCC Rcd 2329 (2000) (*Report and Order*), *recon.
denied,* 15 FCC Rcd 22548 (2000), and codified as Section 73.2080 of the
Commission's Rules, 47 C.F.R. § 73.2080. The Court found the option
invalid because it found that nonminority job applicants were less
likely to receive notification of job openings under that recruitment
option. The Court further found that the other option provided by the
Rule, although not invalid, could not be severed from the one
unconstitutional option and therefore it vacated the entire Rule.

**B. Summary of Significant Issues Raised by the Public Comments in
Response to the IRFA:**

One comment was filed specifically in response to the IRFA. The American
Cable Association (ACA) proposes the following relief for smaller MVPDs
serving fewer than 15,000 subscribers or, in the alternative, employing
ten or fewer employees: an exemption from the EEO outreach requirements,
streamlined recordkeeping and reporting requirements, and a streamlined
FCC Form 395-A (Cable Television Annual Employment Report). ACA states
that for many smaller companies, compliance with EEO outreach,
recordkeeping, and reporting requirements imposes substantial
administrative burdens and costs. ACA also filed these same comments
regarding small MVPDs in response to the *Second NPRM*. We note that the
*Second* *Report and Order* considers ACA's concerns and, as discussed
below, provides relief to small MVPD employment units.[^260]

**C. Recording, Recordkeeping, and Other Compliance Requirements:**

The purpose of this rulemaking is to replace our prior EEO rule that was
found in part to be unconstitutional. Hence, the recording,
recordkeeping, and compliance requirements of the new rule will not
exceed those under the former rule. We note that the Small Business
Administration (SBA) approved our approach for small broadcast stations
and small MVPDs under our former rule.[^261] Generally, no special
skills will be necessary to comply with the requirements.[^262]

The *Second* *Report and Order* requires that broadcasters and MVPDs
recruit for all full-time job vacancies except in exigent circumstances,
that some EEO materials be kept in the public inspection file, and that
all broadcasters and MVPDs adhere to the EEO rules' general
anti-discrimination provisions.

In addition, broadcasters and MVPDs must undertake two additional
recruitment measures. The first recruitment measure requires
broadcasters and MVPDs to provide notification of full-time job
vacancies to any requesting organization if the organization is involved
in assisting job seekers. Depending on the size or location of a
station's staff, the second recruitment measure requires broadcasters to
engage in at least four (for station employment units with more than ten
full-time employees in larger markets) or two (for station employment
units with five to ten full-time employees or if they are located in a
small market) of the following menu options every two years:
participation in at least four job fairs by station personnel who have
substantial responsibility in the making of hiring decisions; hosting of
at least one job fair; co-sponsoring at least one job fair with
organizations in the business and professional community whose
membership includes substantial participation of women and minorities;
participation in at least four events sponsored by organizations
representing groups present in the community interested in broadcast
employment issues (including conventions, career days, workshops, and
similar activities); establishment of an internship program designed to
assist members of the community to acquire skills needed for broadcast
employment; participation in job banks, Internet programs, and other
programs designed to promote outreach generally; participation in
scholarship programs designed to assist students interested in pursuing
a career in broadcasting; establishment of training and mentoring
programs designed to enable station personnel to acquire skills that
could qualify them for higher level positions; participation in at least
four events or programs sponsored by educational institutions relating
to career opportunities in broadcasting; sponsorship of at least two
events in the community designed to inform members of the public as to
employment opportunities in broadcasting; listing of each upper-level
category opening in a job bank or newsletter of media trade groups whose
membership includes substantial participation of women and minorities;
providing assistance to outside non-profit entities in the maintenance
of web sites that provide counseling on the process of searching for
broadcast employment and/or other career development assistance
pertinent to broadcasting; providing training to management level
personnel as to methods of ensuring equal employment opportunity and
preventing discrimination; providing training to personnel of outside
organizations interested in broadcast employment opportunities that
would enable them to better refer job candidates for broadcast
positions; and participation in other activities designed by the station
employment unit to further the goal of disseminating information about
employment opportunities in broadcasting to job candidates who might
otherwise be unaware of such opportunities. MVPD units in larger markets
with more than ten full-time employees engage in at least two options
from the recruitment measures menu every year and MVPD units with six to
ten full-time employees or those located in small markets engage in at
least one option every year.

Also, broadcasters and MVPDs must retain records to demonstrate that
they have recruited for all full-time permanent positions. Such
recordkeeping includes: listings of all full-time vacancies filled,
listings of recruitment sources, the address/contact person/telephone
number of each recruitment source, dated copies of advertisements and
other documentation announcing vacancies, listings of those
organizations which requested notification of vacancies, the total
number of interviewees for each vacancy, the date and recruitment source
of each hire, the number of interviewees referred by each recruitment
source, and documentation showing proof of participation in menu
options. Broadcasters' records must be maintained until grant of the
renewal application for the term during which the hiring activity
occurred. MVPDs would retain their records for a minimum of seven years.
In order to lessen any burdens, records may be maintained in an
electronic format, *e.g.*, by scanning pertinent documents into a
computer format.

Stations and MVPDs must place annually the following EEO records in
their local public inspection file: listings of full-time vacancies
filled during the preceding year, recruitment sources used for each
vacancy, the address/contact person/telephone number of each recruitment
source, an indication of the organizations requesting notification, the
total number of persons interviewed for full-time vacancies during the
preceding year, the total number of interviewees referred by each
recruitment source, a list of the recruitment source that referred each
full-time hiree, and a brief description of the menu option items
undertaken during the preceding year. Station units retain the materials
in their file until final action has been taken on the station's next
license renewal application, and cable entities retain their materials
for a period of five years.

Most broadcasters must submit the contents of their station's EEO public
inspection file to the FCC as part of their renewal application and
midway through the license term for the Commission's mid-term review
(for those subject to mid-term review), and MVPDs with six or more
full-time employees submit copies of their EEO public inspection file to
the Commission every five years. Broadcasters' submissions cover only
the last two years of EEO activity. MVPDs' submissions cover only the
last year of EEO activity. Broadcasters must post their current EEO
public file report on their web site, if they have one.

Also, broadcasters subject to mid-term review must file Form 397
(Broadcast Mid-Term Report) and place a copy of the Report in the public
inspection file. Broadcasters must also place a copy of Form 396
(Broadcast EEO Program Report) and Form 396-A (Broadcast Model EEO
Program Report for the construction or sale of a station) in the public
inspection file.

We also note that we have provided relief to broadcast and MVPD entities
located in small markets. While this is not specifically a small entity
relief, this action also lessens compliance burdens.

**D. Description and Estimate of the Number of Small Entities to Which
the Rules Would Apply:**

1\. Definition of a \"Small Business\"

The new rules would apply to broadcast stations and MVPDs. The RFA
directs the Commission to provide a description of and, where feasible,
an estimate of the number of small entities that may be affected by the
rules adopted herein.[^263] Under the RFA, small entities may include
small organizations, small businesses, and small governmental
jurisdictions.[^264] The RFA, 5 U.S.C. § 601(3), generally defines the
term \"small business\" as having the same meaning as the term \"small
business concern\" under the Small Business Act, 15 U.S.C. § 632. 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 SBA. 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 \[SBA\] 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.\"[^265]

A small organization is generally "any not-for-profit enterprise which
is independently owned and operated and is not dominant in its
field."[^266] Nationwide, as of 1992, there were approximately 275,801
small organizations.[^267] Finally, "small governmental jurisdiction"
generally means "governments of cities, counties, towns, townships,
villages, school districts, or special districts, with a population of
less than 50,000."[^268] As of 1992, there were approximately 85,006
such jurisdictions in the United States.[^269] This number includes
38,978 counties, cities, and towns; of these, 37,566, or 96 percent,
have populations of fewer than 50,000.[^270] The United States Bureau of
the Census (Census Bureau) estimates that this ratio is approximately
accurate for all governmental entities. Thus, of the 85,006 governmental
entities, we estimate that 81,600 (91 percent) are small entities.

2\. Issues in Applying the Definition of a \"Small Business\"

As discussed below, we could not precisely apply the foregoing
definition of \"small business\" in developing our estimates of the
number of small entities to which the rules will apply. Our estimates
reflect our best judgments based on the data available to us.

An element of the definition of \"small business\" is that the entity
not be dominant in its field of operation. We are unable at this time to
define or quantify the criteria that would establish whether a specific
radio or television station is dominant in its field of operation.
Accordingly, the following estimates of small businesses to which the
new rules will apply do not exclude any radio or television station from
the definition of a small business on this basis and are therefore
overinclusive to that extent. An additional element of the definition of
\"small business\" is that the entity must be independently owned and
operated. As discussed further below, we could not fully apply this
criterion, and our estimates of small businesses to which the rules may
apply may be overinclusive to this extent. The SBA\'s general size
standards are developed taking into account these two statutory
criteria. This does not preclude us from taking these factors into
account in making our estimates of the numbers of small entities.

With respect to applying the revenue cap, the SBA has defined \"annual
receipts\" specifically in 13 C.F.R § 121.104, and its calculations
include an averaging process. We do not currently require submission of
financial data from licensees that we could use in applying the SBA\'s
definition of a small business. Thus, for purposes of estimating the
number of small entities to which the rules apply, we are limited to
considering the revenue data that are publicly available, and the
revenue data on which we rely may not correspond completely with the SBA
definition of annual receipts.

Under SBA criteria for determining annual receipts, if a concern has
acquired an affiliate or been acquired as an affiliate during the
applicable averaging period for determining annual receipts, the annual
receipts in determining size status include the receipts of both
firms.[^271] The SBA defines affiliation in 13 C.F.R. § 121.103. In this
context, the SBA\'s definition of affiliate is analogous to our
attribution rules. Generally, under the SBA\'s definition, concerns are
affiliates of each other when one concern controls or has the power to
control the other, or a third party or parties controls or has the power
to control both.[^272] The SBA considers factors such as ownership,
management, previous relationships with or ties to another concern, and
contractual relationships, in determining whether affiliation
exists.[^273] Instead of making an independent determination of whether
television stations were affiliated based on SBA\'s definitions, we
relied on the databases available to us to provide us with that
information.

3\. Estimates Based on Census Data

The rules to be adopted pursuant to this *Report and Order* will apply
to broadcast television and radio stations. [^274] The SBA defines a
television broadcasting station that has no more than \$12.0 million in
annual receipts as a small business.[^275] Television broadcasting
stations consist of establishments primarily engaged in broadcasting
visual programs by television to the public, except cable and other pay
television services.[^276] Included in this industry are commercial,
religious, educational, and other television stations.[^277] Also
included are establishments primarily engaged in television broadcasting
and which produce taped television program materials.[^278] Separate
establishments primarily engaged in producing taped television program
materials are classified under other North American Industry
Classification (NAICS) numbers.[^279]

There were 1,695 full-service television stations operating as of
December 2001.[^280] According to Census Bureau data for 1997, there
were 906 Television Broadcasting firms, total, that operated for the
entire year.[^281] Of this total, 734 firms had annual receipts of
\$9,999,999.00 or less and an additional 71 had receipts of \$10 million
to \$24,999,999.00.[^282] Thus, under this standard, the majority of
firms can be considered small.

The SBA defines a radio broadcasting station that has no more than \$6
million in annual receipts as a small business.[^283] A radio
broadcasting station is an establishment primarily engaged in
broadcasting aural programs by radio to the public.[^284] Included in
this industry are commercial, religious, educational, and other radio
stations.[^285] Radio broadcasting stations which primarily are engaged
in radio broadcasting and which produce radio program materials are
similarly included.[^286] However, radio stations which are separate
establishments and are primarily engaged in producing radio program
material are classified under another NAICS number.[^287] According to
Census Bureau data for 1997, there were 4,476 Radio Stations (firms),
total, that operated for the entire year.[^288] Of this total 4,265 had
annual receipts of \$4,999,999.00 or less, and an additional 103 firms
had receipts of \$5 million to \$9,999,999.00.[^289] Thus, under this
standard, the great majority of firms can be considered small.

The *Second Report and Order* also amends EEO rules applicable to MVPDs.
SBA has developed a definition of a small entity for cable and other
program distribution, which includes all such companies generating
\$12.5 million or less in annual receipts.[^290] This definition
includes direct broadcast satellite services (DBS), multipoint
distribution systems (MDS), and local multipoint distribution service
(LMDS). According to Census Bureau data for 1997, there were 1,311 firms
within the industry category Cable and Other Program Distribution,
total, that operated for the entire year.[^291] Of this total, 1,180
firms had annual receipts of \$9,999,999.00 or less, and an additional
52 firms had receipts of \$10 million to \$24,999,999.00.[^292] Thus,
under this standard, the majority of firms can be considered small.
Below we discuss these services to provide a more succinct estimate of
small entities.

*Cable Systems*: The Commission has developed, with SBA\'s approval, its
own definition of small cable system operators. Under the Commission\'s
rules, a \"small cable company\" is one serving fewer than 400,000
subscribers nationwide.[^293] Based on our most recent information, we
estimate that there were 1,439 cable operators that qualified as small
cable companies at the end of 1995.[^294] Since then, some of those
companies may have grown to serve more than 400,000 subscribers, and
others may have been involved in transactions that caused them to be
combined with other cable operators. Consequently, we estimate that
there are fewer than 1,439 small entity cable system operators that may
be affected by the rules proposed herein.

The Communications Act also contains a definition of a small cable
system operator, which is \"a cable operator that, directly or through
an affiliate, serves in the aggregate fewer than 1% of all subscribers
in the United States and is not affiliated with any entity or entities
whose gross annual revenue in the aggregate exceeds
\$250,000,000.\"[^295] The Commission has determined that there are
67,700,000 subscribers in the United States.[^296] Therefore, we found
that an operator serving fewer than 677,000 subscribers shall be deemed
a small operator, if its annual revenues, when combined with the total
annual revenues of all of its affiliates, do not exceed \$250 million in
the aggregate.[^297] Based on available data, we find that the number of
cable operators serving 677,000 subscribers or less totals approximately
1,450.[^298] Since we do not request nor collect information on whether
cable system operators are affiliated with entities whose gross annual
revenues exceed \$250,000,000, we are unable at this time to estimate
with greater precision the number of cable system operators that would
qualify as small cable operators under the definition in the
Communications Act.

*MDS:* MDS involves a variety of transmitters, which are used to relay
programming to the home or office.[^299] The Commission has defined
\"small entity\" for purposes of the 1996 auction of MDS as an entity
that, together with its affiliates, has average gross annual revenues
that are not more than \$40 million for the preceding three calendar
years.[^300] This definition of a small entity in the context of MDS
auctions has been approved by the SBA.[^301] These stations were
licensed prior to implementation of Section 309(j) of the Communications
Act of 1934, as amended.[^302] Licenses for new MDS facilities are now
awarded to auction winners in Basic Trading Areas (BTAs) and BTA-like
areas.[^303] The MDS auctions resulted in 67 successful bidders
obtaining licensing opportunities for 493 BTAs. Of the 67 auction
winners, 61 met the definition of a small business.

*LMDS*: The auction of the 1,030 LMDS licenses began on February 18,
1998, and closed on March 25, 1998. The Commission defined "small
entity" for LMDS licenses as an entity that has average gross revenues
of less than \$40 million in the three previous calendar years.[^304] An
additional classification for "very small business" was added and is
defined as an entity that, together with its affiliates, has average
gross revenues of not more than \$15 million for the preceding three
calendar years.[^305] These regulations defining "small entity" in the
context of LMDS auctions have been approved by the SBA.[^306] There were
93 winning bidders that qualified as small entities in the LMDS
auctions. A total of 93 small and very small business bidders won
approximately 277 A Block licenses and 387 B Block licenses. On March
27, 1999, the Commission reauctioned 161 licenses; there were 40 winning
bidders. Based on this information, we conclude that the number of small
LMDS licenses will include the 93 winning bidders in the first auction
and the 40 winning bidders in the reauction, for a total of 133 small
entity LMDS providers as defined by the SBA and the Commission's auction
rules.

*DBS:* Because DBS provides subscription services, it falls within the
SBA-recognized definition of "Cable and Other Program
Distribution."[^307] This definition provides that a small entity is one
with \$12.5 million or less in annual receipts.[^308] Currently, there
are nine DBS authorizations, though there are only two DBS companies in
operation at this time. We neither request nor collect annual revenue
information for DBS services, and are unable to determine the number of
DBS operators that would be considered a small business under the SBA
definition.

An alternative way to classify small entities is by the number of
employees. Based on available data, we estimate that in 1997 the total
number of full-service broadcast stations with four or fewer employees
was 5186, of which 340 were television stations.[^309] Similarly, we
estimate that in 1997, 1900 cable employment units employed fewer than
six full-time employees. Also, in 1997, 296 "MVPD" employment units
employed fewer than six full-time employees.[^310] We also estimate that
in 1997, the total number of full-service broadcast stations with five
to ten employees was 2145, of which 200 were television stations.
Similarly, we estimate that in 1997, 322 cable employment units employed
six to ten full-time employees. Also, in 1997, approximately 65 MVPD
employment units employed six to ten full-time employees.

**E. Steps Taken to Minimize Significant Economic Impact on Small
Entities, and Significant Alternatives Considered:**

The RFA requires an agency to describe any significant alternatives that
it has considered in reaching its proposed approach, which may include
the following four alternatives (among others): (1) the establishment of
differing compliance or reporting requirements or timetables that take
into account the resources available to small entities; (2) the
clarification, consolidation, or simplification of compliance or
reporting requirements under the rule for small entities; (3) the use of
performance, rather than design, standards; and (4) an exemption from
coverage of the rule, or any part thereof, for small entities.[^311]

This *Second* *Report and Order* sets forth the Commission\'s new EEO
rules and procedures, and considers the significant alternatives
presented in the comments. We have determined that our finalized rules
fulfill our public interest goals while maintaining minimal regulatory
burdens and ease and clarity of administration.

The Second NPRM proposed to exempt small staff stations from specific
EEO recordkeeping and reporting requirements as had been the case under
our previous EEO Rule. Under our former EEO Rule, station employment
units with fewer than five full-time employees were exempt from the
Rule's outreach provisions; station employment units with five to ten
full-time employees performed only two, rather than four, menu options
every two years; and radio station employment units with five to ten
full-time employees were exempt from the mid-term review requirement. In
addition, MVPD employment units employing six to ten full-time employees
performed only one menu option each year as opposed to the two options
required otherwise. MVPDs with fewer than six full-time employees were
not required to demonstrate compliance with the EEO program
requirements. The *Second Report and Order* adopts this same relief.
Thus, the EEO Rule does not impose unreasonable burdens on small
broadcasters or MVPDs.

We provide this relief because entities with small staffs have limited
personnel and financial resources to carry out EEO requirements. The
exception for small businesses provides them with some relief of any
recordkeeping and reporting costs. We believe that the relief to small
broadcasters and MVPDs balances the importance of deterring
discrimination and achieving broad outreach in broadcast and MVPD
employment practices against the need to maintain minimal regulatory
burdens.

The *Second NPRM* asked whether the Commission should increase the
number of employees below which broadcasters would be exempt from the
EEO outreach requirements to include employment units with ten or fewer
employees. We also asked whether to increase the threshold for the
lesser number of menu options, or permit the lesser number for stations
in smaller markets.[^312] As noted, we received one comment directly in
response to the IRFA. In addition, we received a few general comments
that are pertinent. As discussed in the *Second Report and Order*, the
National Association of Broadcasters (NAB) supports exempting stations
with fewer than ten full-time employees. NAB explains that such stations
face unique obstacles in complying with our Rule because of a lack of
personnel and resources, difficulties in competing with larger stations,
and a lack of access to resources necessary to implement menu options.
NAB also contends that stations in smaller markets face difficulties
similar to those facing stations with fewer that ten full-time
employees.[^313] The Association of Public Television Stations supports
an exemption from the EEO Rule for stations with ten or fewer employees
because of the funding problems of small public television stations,
especially those outside of top 100 markets, and difficulties
experienced in attracting and retaining minority employees.[^314] The
Local Television Group (LTVG) asks the Commission to exempt stations
with fewer than 100 employees, in order to parallel Equal Employment
Opportunity Commission rules.[^315] Minority Media and
Telecommunications Council (MMTC), the National Organization for Women
(NOW), American Women in Radio and Television (AWRT), the National
Association for the Advancement of Colored People (NAACP), and the
Lawyers' Committee for Civil Rights Under Law oppose an increase in the
exemptions, citing primarily the opportunity for entry into the industry
provided by small stations.[^316]

The ACA asks for an exemption from the EEO outreach requirements,
streamlined recordkeeping and reporting requirements, and a streamlined
FCC Form 395-A (Cable Television Annual Employment Report) for cable
systems with fewer than 15,000 subscribers or, in the alternative,
employing ten or fewer employees.[^317] ACA explains that the Commission
previously provided relief to systems with fewer than 15,000 subscribers
in the context of rate regulation, and that compliance with EEO outreach
and recordkeeping imposes substantial administrative burdens for smaller
cable companies.[^318]

Fletcher Heald & Hildreth, P.L.C. (FH&H) requests that the Commission
adopt a policy that when an owner has a controlling interest (20% or
greater voting control) in a licensee, he or she would not be considered
a station employee for purposes of the EEO Rule, even if he or she in
fact worked at the station.[^319]

We recognize that smaller markets may not have the resources in the
community to support many of the required menu options. Accordingly, the
EEO Rule adopted in the *Second Report and Order* provides that small
market systems will be permitted to perform only two, rather than four,
menu options during a two-year period.

The EEO Rule also will not consider owners holding a 20% or greater
voting interest in a licensee as station employees for EEO purposes.
This policy could assist small operators by reducing the number of
full-time employees an entity would have when assessing its eligibility
for a small entity exemption or other small business relief.

We find no basis in the record to provide any additional exemptions from
our Rule. Generalized claims as to the alleged burdens by commenters are
unsupported by evidence. Thus, the Rule we are adopting today does not
impose unreasonable burdens on small entities. Nor does the Rule impose
hardships comparable to those involved in rate regulation. Further, as
we found in the *Report and Order*, small entities provide much needed
entry-level employment opportunities in the industry.

With respect to streamlining reporting/recordkeeping requirements, we
will replace Form 395-A with a new form, the FCC Form 396-C. As
discussed in the *Second Report and Order,* MVPD compliance with the EEO
Rule's requirements is monitored pursuant to annual reports filed by
MVPDs which must be placed in an entity's public file. The Form 396-C
requires information concerning the entity's EEO outreach program and
not its workforce. We will consider the adoption of a new form eliciting
workforce data in a future Report and Order.

In order to lessen any burdens, the *Second Report and Order* does not
require the retention of records of the recruitment sources of
applicants as this may require additional efforts to contact applicants
who did not provide the information in the application. Also, records
may be conveniently maintained in an electronic format, *e.g.*, by
scanning pertinent documents into a computer format.

**[Report to Congress]{.underline}**: The Commission will send a copy of
the *Second* *Report and Order,* including this FRFA, in a report to be
sent to Congress pursuant to the Congressional Review Act, 5 U.S.C. §
801(a)(1)(A). In addition, the Commission\'s Consumer and Governmental
Affairs Bureau, Reference Information Center, will send a copy of this
*Second* *Report and Order*, including this FRFA, to the Chief Counsel
for Advocacy of the Small Business Administration. A copy of the *Second
Report and Order* and FRFA (or summaries thereof) will also be published
in the Federal Register. *See* 5 U.S.C. § 604(b).

**APPENDIX C**

**I. Part 73 of Chapter 1 of Title 47 of the Code of Federal Regulations
is amended as follows:**

**Subpart H - Rules Applicable to All Broadcast Stations**

Section 73.2080 is amended to delete the present language in its
entirety and replace it with the following:

**§ 73.2080. Equal employment opportunities ("EEO").**

\(a\) *General EEO policy*. Equal opportunity in employment shall be
afforded by all licensees or permittees of commercially or
noncommercially operated AM, FM, TV, Class A TV or international
broadcast stations (as defined in this part) to all qualified persons,
and no person shall be discriminated against in employment by such
stations because of race, color, religion, national origin, or sex.
Religious radio broadcasters may establish religious belief or
affiliation as a job qualification for all station employees. However,
they cannot discriminate on the basis of race, color, national origin or
gender from among those who share their religious affiliation or belief.
For purposes of this rule, a religious broadcaster is a licensee which
is, or is closely affiliated with, a church, synagogue, or other
religious entity, including a subsidiary of such an entity.

\(b\) *General EEO program requirements*. Each broadcast station shall
establish, maintain, and carry out a positive continuing program of
specific practices designed to ensure equal opportunity and
nondiscrimination in every aspect of station employment policy and
practice. Under the terms of its program, a station shall:

\(1\) Define the responsibility of each level of management to ensure
vigorous enforcement of its policy of equal opportunity, and establish a
procedure to review and control managerial and supervisory performance;

\(2\) Inform its employees and recognized employee organizations of the
equal employment opportunity policy and program and enlist their
cooperation;

\(3\) Communicate its equal employment opportunity policy and program
and its employment needs to sources of qualified applicants without
regard to race, color, religion, national origin, or sex, and solicit
their recruitment assistance on a continuing basis;

\(4\) Conduct a continuing program to exclude all unlawful forms of
prejudice or discrimination based upon race, color, religion, national
origin, or sex from its personnel policies and practices and working
conditions; and

\(5\) Conduct a continuing review of job structure and employment
practices and adopt positive recruitment, job design, and other measures
needed to ensure genuine equality of opportunity to participate fully in
all organizational units, occupations, and levels of responsibility.

\(c\) *Specific EEO program requirements.* Under the terms of its
program, a station employment unit must:

\(1\) Recruit for every full-time job vacancy in its operation. A job
filled by an internal promotion is not considered a vacancy for which
recruitment is necessary. Religious radio broadcasters who establish
religious affiliation as a qualification for a job position are not
required to comply with these recruitment requirements with respect to
that job position or positions, but will be expected to make reasonable,
good faith efforts to recruit applicants who are qualified based on
their religious affiliation. Nothing in this section shall be
interpreted to require a broadcaster to grant preferential treatment to
any individual or group based on race, color, national origin, religion,
or gender.

\(i\) A station employment unit shall use recruitment sources for each
vacancy sufficient in its reasonable, good faith judgment to widely
disseminate information concerning the vacancy.

\(ii\) In addition to such recruitment sources, a station employment
unit shall provide notification of each full-time vacancy to any
organization that distributes information about employment opportunities
to job seekers or refers job seekers to employers, upon request by such
organization. To be entitled to notice of vacancies, the requesting
organization must provide the station employment unit with its name,
mailing address, e-mail address (if applicable), telephone number, and
contact person, and identify the category or categories of vacancies of
which it requests notice. (An organization may request notice of all
vacancies).

\(2\) Engage in at least four (if the station employment unit has more
than ten full-time employees and is not located in a smaller market) or
two (if it has five to ten full-time employees and/or is located
entirely in a smaller market) of the following initiatives during each
two-year period beginning with the date stations in the station
employment unit are required to file renewal applications, or the
second, fourth or sixth anniversaries of that date.

\(i\) participation in at least four job fairs by station personnel who
have substantial responsibility in the making of hiring decisions;

\(ii\) hosting of at least one job fair;

\(iii\) co-sponsoring at least one job fair with organizations in the
business and professional community whose membership includes
substantial participation of women and minorities;

\(iv\) participation in at least four events sponsored by organizations
representing groups present in the community interested in broadcast
employment issues, including conventions, career days, workshops, and
similar activities;

\(v\) establishment of an internship program designed to assist members
of the community to acquire skills needed for broadcast employment;

\(vi\) participation in job banks, Internet programs, and other programs
designed to promote outreach generally (*i.e.*, that are not primarily
directed to providing notification of specific job vacancies);

\(vii\) participation in scholarship programs designed to assist
students interested in pursuing a career in broadcasting;

\(viii\) establishment of training programs designed to enable station
personnel to acquire skills that could qualify them for higher level
positions;

\(ix\) establishment of a mentoring program for station personnel;

\(x\) participation in at least four events or programs sponsored by
educational institutions relating to career opportunities in
broadcasting;

\(xi\) sponsorship of at least two events in the community designed to
inform and educate members of the public as to employment opportunities
in broadcasting;

\(xii\) listing of each upper-level category opening in a job bank or
newsletter of media trade groups whose membership includes substantial
participation of women and minorities;

\(xiii\) provision of assistance to unaffiliated non-profit entities in
the maintenance of web sites that provide counseling on the process of
searching for broadcast employment and/or other career development
assistance pertinent to broadcasting;

\(xiv\) provision of training to management level personnel as to
methods of ensuring equal employment opportunity and preventing
discrimination;

\(xv\) provision of training to personnel of unaffiliated non-profit
organizations interested in broadcast employment opportunities that
would enable them to better refer job candidates for broadcast
positions;

\(xvi\) participation in other activities designed by the station
employment unit reasonably calculated to further the goal of
disseminating information as to employment opportunities in broadcasting
to job candidates who might otherwise be unaware of such opportunities.

\(3\) Analyze its recruitment program on an ongoing basis to ensure that
it is effective in achieving broad outreach to potential applicants, and
address any problems found as a result of its analysis.

\(4\) Periodically analyze measures taken to:

\(i\) Disseminate the station's equal employment opportunity program to
job applicants and employees;

\(ii\) Review seniority practices to ensure that such practices are
nondiscriminatory;

\(iii\) Examine rates of pay and fringe benefits for employees having
the same duties, and eliminate any inequities based upon race, national
origin, color, religion, or sex discrimination;

\(iv\) Utilize media for recruitment purposes in a manner that will
contain no indication, either explicit or implicit, of a preference for
one race, national origin, color, religion or sex over another;

\(v\) Ensure that promotions to positions of greater responsibility are
made in a nondiscriminatory manner;

\(vi\) Where union agreements exist, cooperate with the union or unions
in the development of programs to ensure all persons of equal
opportunity for employment, irrespective of race, national origin,
color, religion, or sex, and include an effective nondiscrimination
clause in new or renegotiated union agreements; and

\(vii\) Avoid the use of selection techniques or tests that have the
effect of discriminating against any person based on race, national
origin, color, religion, or sex.

\(5\) Retain records to document that it has satisfied the requirements
of paragraphs (c)(1) and (2) of this section. Such records, which may be
maintained in an electronic format, shall be retained until after grant
of the renewal application for the term during which the vacancy was
filled or the initiative occurred. Such records need not be submitted to
the FCC unless specifically requested. The following records shall be
maintained:

\(i\) listings of all full-time job vacancies filled by the station
employment unit, identified by job title;

\(ii\) for each such vacancy, the recruitment sources utilized to fill
the vacancy (including, if applicable, organizations entitled to
notification pursuant to paragraph (c)(1)(ii) of this section, which
should be separately identified), identified by name, address, contact
person and telephone number;

\(iii\) dated copies of all advertisements, bulletins, letters, faxes,
e-mails, or other communications announcing vacancies;

\(iv\) documentation necessary to demonstrate performance of the
initiatives required by paragraph (c)(2) of this section, including
sufficient information to fully disclose the nature of the initiative
and the scope of the station\'s participation, including the station
personnel involved;

\(v\) the total number of interviewees for each vacancy and the referral
source for each interviewee; and

\(vi\) the date each vacancy was filled and the recruitment source that
referred the hiree.

\(6\) Annually, on the anniversary of the date a station is due to file
its renewal application, the station shall place in its public file,
maintained pursuant to § 73.3526 or § 73.3527, and on its web site, if
it has one, an EEO public file report containing the following
information (although if any broadcast licensee acquires a station
pursuant to FCC Form 314 or FCC Form 315 during the twelve months
covered by the EEO public file report, its EEO public file report shall
cover the period starting with the date it acquired the station):

\(i\) a list of all full-time vacancies filled by the station\'s
employment unit during the preceding year, identified by job title;

\(ii\) for each such vacancy, the recruitment source(s) utilized to fill
the vacancy (including, if applicable, organizations entitled to
notification pursuant to paragraph (c)(1)(ii) of this section, which
should be separately identified), identified by name, address, contact
person and telephone number;

\(iii\) the recruitment source that referred the hiree for each
full-time vacancy during the preceding year;

\(iv\) data reflecting the total number of persons interviewed for
full-time vacancies during the preceding year and the total number of
interviewees referred by each recruitment source utilized in connection
with such vacancies; and

\(v\) a list and brief description of initiatives undertaken pursuant to
paragraph (c)(2) of this section during the preceding year.

\(d\) *Small Station Exemption*. The provisions of paragraphs (b) and
(c) of this section shall not apply to station employment units that
have fewer than five full-time employees.

\(e\) *Definitions*. For the purposes of this Rule:

\(1\) a full-time employee is a permanent employee whose regular work
schedule is 30 hours per week or more.

\(2\) a station employment unit is a station or a group of commonly
owned stations in the same market that share at least one employee.

\(3\) a smaller market includes metropolitan areas as defined by the
Office of Management and Budget with a population of fewer than 250,000
persons and areas outside of all metropolitan areas as defined by the
Office of Management and Budget.

\(f\) *Enforcement.* The following provisions apply to employment
activity concerning full-time positions at each broadcast station
employment unit (defined in this part) employing five or more persons in
full-time positions, except where noted.

\(1\) All broadcast stations, including those that are part of an
employment unit with fewer than five full-time employees, shall file a
Broadcast Equal Employment Opportunity Program Report (Form 396) with
their renewal application. Form 396 is filed on the date the station is
due to file its application for renewal of license. If a broadcast
licensee acquires a station pursuant to FCC Form 314 or FCC Form 315
during the period that is to form the basis for the Form 396,
information provided on its Form 396 should cover the licensee's EEO
recruitment activity during the period starting with the date it
acquired the station. Stations are required to maintain a copy of their
Form 396 in the station's public file in accordance with the provisions
of §§ 73.3526 and 73.3527.

\(2\) The Commission will conduct a mid-term review of the employment
practices of each broadcast television station and each radio station
that is part of an employment unit of more than ten full-time employees
four years following the station's most recent license expiration date
as specified in § 73.1020. Each such licensee is required to file with
the Commission the Broadcast Mid-Term Report (FCC Form 397) four months
prior to that date. If a broadcast licensee acquires a station pursuant
to FCC Form 314 or FCC Form 315 during the period that is to form the
basis for the Form 397, its Report should cover the licensee's EEO
recruitment activity during the period starting with the date it
acquired the station.

\(3\) If a station is subject to a time brokerage agreement, the
licensee shall file Forms 396, Forms 397, and EEO public file reports
concerning only its own recruitment activity. If a licensee is a broker
of another station or stations, the licensee-broker shall include its
recruitment activity for the brokered station(s) in determining the
bases of Forms 396, Forms 397 and the EEO public file reports for its
own station. If a licensee-broker owns more than one station, it shall
include its recruitment activity for the brokered station in the Forms
396, Forms 397, and EEO public file reports filed for its own station
that is most closely affiliated with, and in the same market as, the
brokered station. If a licensee-broker does not own a station in the
same market as the brokered station, then it shall include its
recruitment activity for the brokered station in the Forms 396, Forms
397, and EEO public file reports filed for its own station that is
geographically closest to the brokered station.

\(4\) Broadcast stations subject to this section shall maintain records
of their recruitment activity necessary to demonstrate that they are in
compliance with the EEO Rule. Stations shall ensure that they maintain
records sufficient to verify the accuracy of information provided in
Forms 396, Forms 397, and EEO public file reports. To determine
compliance with the EEO Rule, the Commission may conduct inquiries of
licensees at random or if it has evidence of a possible violation of the
EEO Rule. In addition, the Commission will conduct random audits.
Specifically, each year approximately five percent of all licensees in
the television and radio services will be randomly selected for audit,
ensuring that, even though the number of radio licensees is
significantly larger than television licensees, both services are
represented in the audit process. Upon request, stations shall make
records available to the Commission for its review.

\(5\) The public may file complaints throughout the license term based
on a station's Form 397 or the contents of a station's public file.
Provisions concerning filing, withdrawing, or non-filing of informal
objections or petitions to deny license renewal, assignment, or transfer
applications are delineated in §§ 73.3584 and 73.3587-3589 of the
Commission's Rules.

\(g\) *Sanctions and Remedies*. The Commission may issue appropriate
sanctions and remedies for any violation of this Rule.

\*\*\*\*\*

**II. Part 76 of Chapter 1 of the Code of Federal Regulations is amended
as follows:**

**Subpart E \-- Equal Employment Opportunity Requirements**

Section 76.75 is revised by amending paragraphs (b), (f); deleting
existing paragraphs (g), (h), (i), (j) and (k); and adding new
paragraphs (g), (h), (i) and (j):

**§ 76.75 Specific EEO program requirements.**

\(b\) Establish, maintain and carry out a positive continuing program of
outreach activities designed to ensure equal opportunity and
nondiscrimination in employment. The following activities shall be
undertaken by each employment unit:

\(1\) Recruit for every full-time job vacancy in its operation. A job
filled by an internal promotion is not considered a vacancy for which
recruitment is necessary. Nothing in this section shall be interpreted
to require a multichannel video programming distributor to grant
preferential treatment to any individual or group based on race,
national origin, color, religion, age, or gender.

\(i\) An employment unit shall use recruitment sources for each vacancy
sufficient in its reasonable, good faith judgment to widely disseminate
information concerning the vacancy.

\(ii\) In addition to using such recruitment sources, a multichannel
video programming distributor employment unit shall provide notification
of each full-time vacancy to any organization that distributes
information about employment opportunities to job seekers or refers job
seekers to employers, upon request by such organization. To be entitled
to notice of vacancies, the requesting organization must provide the
multichannel video programming distributor employment unit with its
name, mailing address, e-mail address (if applicable), telephone number,
and contact person, and identify the category or categories of vacancies
of which it requests notice. (An organization may request notice of all
vacancies).

\(2\) Engage in at least two (if the unit has more than ten full-time
employees and is not located in a smaller market) or one (if the unit
has six to ten full-time employees and/or is located, in whole or in
part, in a smaller market) of the following initiatives during each
twelve-month period preceding the filing of an EEO program annual
report:

\(i\) participation in at least two job fairs by unit personnel who have
substantial responsibility in the making of hiring decisions;

\(ii\) hosting of at least one job fair;

\(iii\) co-sponsoring at least one job fair with organizations in the
business and professional community whose membership includes
substantial participation of women and minorities;

\(iv\) participation in at least two events sponsored by organizations
representing groups present in the community interested in multichannel
video programming distributor employment issues, including conventions,
career days, workshops, and similar activities;

\(v\) establishment of an internship program designed to assist members
of the community in acquiring skills needed for multichannel video
programming distributor employment;

\(vi\) participation in job banks, Internet programs, and other programs
designed to promote outreach generally (*i.e.*, that are not primarily
directed to providing notification of specific job vacancies);

\(vii\) participation in a scholarship program designed to assist
students interested in pursuing a career in multichannel video
programming communications;

\(viii\) establishment of training programs designed to enable unit
personnel to acquire skills that could qualify them for higher level
positions;

\(ix\) establishment of a mentoring program for unit personnel;

\(x\) participation in at least two events or programs sponsored by
educational institutions relating to career opportunities in
multichannel video programming communications;

\(xi\) sponsorship of at least one event in the community designed to
inform and educate members of the public as to employment opportunities
in multichannel video programming communications;

\(xii\) listing of each upper-level category opening in a job bank or
newsletter of media trade groups whose membership includes substantial
participation of women and minorities;

\(xiii\) provision of assistance to unaffiliated non-profit entities in
the maintenance of web sites that provide counseling on the process of
searching for multichannel video programming employment and/or other
career development assistance pertinent to multichannel video
programming communications;

\(xiv\) provision of training to management level personnel as to
methods of ensuring equal employment opportunity and preventing
discrimination;

\(xv\) provision of training to personnel of unaffiliated non-profit
organizations interested in multichannel video programming employment
opportunities that would enable them to better refer job candidates for
multichannel video programming positions;

\(xvi\) participation in other activities reasonably calculated by the
unit to further the goal of disseminating information as to employment
opportunities in multichannel video programming to job candidates who
might otherwise be unaware of such opportunities.

\* \* \* \* \*

\(f\) A multichannel video programming distributor shall analyze its
recruitment program on an ongoing basis to ensure that it is effective
in achieving broad outreach, and address any problems found as a result
of its analysis.

\(g\) Analyze on an ongoing basis its efforts to recruit, hire, promote
and use services without discrimination on the basis of race, national
origin, color, religion, age, or sex and explain any difficulties
encountered in implementing its equal employment opportunity program.
For example, this requirement may be met by:

\(1\) Where union agreements exist, cooperating with the union or unions
in the development of programs to ensure all persons equal opportunity
for employment, and including an effective nondiscrimination clause in
new or renegotiated union agreements;

\(2\) Reviewing seniority practices to ensure that such practices are
nondiscriminatory;

\(3\) Examining rates of pay and fringe benefits for employees having
the same duties, and eliminating any inequities based upon race,
national origin, color, religion, age, or sex discrimination;

\(4\) Evaluating the recruitment program to ensure that it is effective
in achieving a broad outreach to potential applicants.

\(5\) Utilizing media for recruitment purposes in a manner that will
contain no indication, either explicit or implicit, of a preference for
one race, national origin, color, religion, age, or sex over another;
and

\(6\) Avoiding the use of selection techniques or tests that have the
effect of discriminating against qualified minority groups or women.

\(h\) A full-time employee is a permanent employee whose regular work
schedule is 30 hours per week or more.

\(i\) The provisions of paragraphs (b)(1)(ii), (b)(2), (c), and (f) of
this section shall not apply to multichannel video programming
distributor employment units that have fewer than six full-time
employees.

\(j\) For the purposes of this Rule, a smaller market includes
metropolitan areas as defined by the Office of Management and Budget
with a population of fewer than 250,000 persons and areas outside of all
metropolitan areas as defined by the Office of Management and Budget.

Section 76.77 is amended to read as follows:

**§ 76.77 Reporting requirements and enforcement.**

\(a\) *EEO program annual reports.* Information concerning a unit's
compliance with the EEO recruitment requirements shall be filed by each
employment unit with six or more full-time employees on FCC Form 396-C
on or before September 30 of each year. If a multichannel video
programming distributor acquires a unit during the twelve months covered
by the EEO program annual report, the recruitment activity in the report
shall cover the period starting with the date the entity acquired the
unit.

\(b\) *Certification of Compliance.* The Commission will use the
recruitment information submitted on a unit's EEO program annual report
to determine whether the unit is in compliance with the provisions of
this subpart. Units found to be in compliance with these rules will
receive a Certificate of Compliance. Units found not to be in compliance
will receive notice that they are not certified for a given year.

\(c\) *Investigations.* The Commission will investigate each unit at
least once every five years. Employment units are required to submit
supplemental investigation information with their regular EEO program
annual reports in the years they are investigated. If an entity acquires
a unit during the period covered by the supplemental investigation, the
information submitted by the unit as part of the investigation shall
cover the period starting with the date the operator acquired the unit.
The supplemental investigation information shall include a copy of the
unit's EEO public file report for the preceding year.

\(d\) *Records and inquiries.* Employment units subject to this subpart
shall maintain records of their recruitment activity in accordance with
§76.75 to demonstrate whether they are in compliance with the EEO rules.
Units shall ensure that they maintain records sufficient to verify the
accuracy of information provided in their EEO program annual reports and
the supplemental investigation responses required by §76.1702 to be kept
in a unit's public file. To determine compliance with the EEO rules, the
Commission may conduct inquiries of employment units at random or if the
Commission has evidence of a possible violation of the EEO rules. Upon
request, employment units shall make records available to the Commission
for its review.

\(e\) *Public complaints.* The public may file complaints based on EEO
program annual reports, supplemental investigation information, or the
contents of a unit's public file.

\(f\) *Sanctions and remedies.* The Commission may issue appropriate
sanctions and remedies for any violation of the EEO rules.

\*\*\*\*\*

Section 76.1702 is revised to read as follows in lieu of both versions
of this Rule currently specified in the Code of Federal Regulations:

**§ 76.1702 Equal employment opportunity.**

\(a\) Every employment unit with six or more full-time employees shall
maintain for public inspection a file containing copies of all EEO
program annual reports filed with the Commission pursuant to §76.77 and
the equal employment opportunity program information described in
paragraph (b) of this section. These materials shall be placed in the
unit's public inspection file annually by the date that the unit's EEO
program annual report is due to be filed and shall be retained for a
period of five years. The file shall be maintained at the central office
and at every location with six or more full-time employees. A
headquarters employment unit file and a file containing a consolidated
set of all documents pertaining to the other employment units of a
multichannel video programming distributor that operates multiple units
shall be maintained at the central office of the headquarters employment
unit. The multichannel video programming distributor shall provide
reasonable accommodation at these locations for undisturbed inspection
of its equal employment opportunity records by members of the public
during regular business hours.

\(b\) The following equal employment opportunity program information
shall be included annually in the unit's public file, and on the unit's
web site, if it has one, at the time of the filing of its FCC Form
396-C:

\(1\) A list of all full-time vacancies filled by the multichannel video
programming distributor employment unit during the preceding year,
identified by job title;

\(2\) For each such vacancy, the recruitment source(s) utilized to fill
the vacancy (including, if applicable, organizations entitled to
notification pursuant to §76.75(b)(1)(ii) of this section, which should
be separately identified), identified by name, address, contact person
and telephone number;

\(3\) The recruitment source that referred the hiree for each full-time
vacancy during the preceding year;

\(4\) Data reflecting the total number of persons interviewed for
full-time vacancies during the preceding year and the total number of
interviewees referred by each recruitment source utilized in connection
with such vacancies; and

\(5\) A list and brief description of the initiatives undertaken
pursuant to §76.75(b)(2) during the preceding year, if applicable.

\*\*\*\*\*

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**APPENDIX E**

**INITIAL REGULATORY FLEXIBILITY ANALYSIS**

As required by the Regulatory Flexibility Act ("RFA"),[^320] the
Commission has prepared this present Initial Regulatory Flexibility
Analysis ("IRFA") of the possible significant economic impact on small
entities by the policies and rules proposed in this *Second* *Report and
Order* *and Third* *Notice of Proposed Rule Making (*"*Third
Notice*"*).* Written public comments are requested on this IRFA.
Comments must be identified as responses to the IRFA and must be filed
by the deadlines for comments on the *Third Notice* provided above. The
Commission will send a copy of the *Third Notice*, including this IRFA,
to the Chief Counsel for Advocacy of the Small Business
Administration.[^321] In addition, the *Third Notice* and IRFA (or
summaries thereof) will be published in the Federal Register.[^322]

**A.** **Need for, and Objectives of, the Proposed Rule Changes:**

This *Third Notice* requests comments concerning the applicability of
new equal employment opportunity ("EEO") rules and policies with respect
to part-time employees of broadcast and multichannel video programming
distributors ("MVPDs"). The EEO rules apply to full-time employees,
defined as those whose regular work schedule is 30 hours or more a week.
The current record is insufficient to allow the Commission to determine
whether and how to apply the rules to part-time positions, defined as
fewer than 30 hours per week. Accordingly, the *Third Notice* seeks
comment on this issue. In particular, the *Third Notice* seeks comment
on how many and what types of positions in the broadcast and MVPD
industries fall into this category; the significance of these positions
in terms of entry into broadcasting; how burdensome compliance with the
recruitment, record-keeping, and reporting requirements for all or some
part-time positions would be for broadcasters and MVPDs; and whether the
requirements applicable to part-time positions should be the same as or
different from those applicable to full-time positions. We also seek
comment on whether we should set a minimum number of hours for a
part-time position to be covered by the rules and, if so, what that
minimum should be.

**B. Legal Basis:**

Authority for the actions proposed in this *Third Notice* may be found
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.

**C. Recording, Recordkeeping, and Other Compliance Requirements:**

As noted, the purpose of this rulemaking is to determine whether and how
to apply the Commission's EEO rules to employment positions involving
fewer than 30 hours per week. Hence, this *Third Notice* anticipates
that any recording, recordkeeping and compliance requirements proposed
for part-time employees will not exceed those already provided for
full-time employees.[^323]

**D. Description and Estimate of the Number of Small Entities to Which
the Rules Would Apply:**

1\. Definition of a \"Small Business\"

The proposed rules would apply to broadcast stations and MVPDs. The RFA
directs the Commission to provide a description of and, where feasible,
an estimate of the number of small entities that may be affected by the
rules adopted herein.[^324] Under the RFA, small entities may include
small organizations, small businesses, and small governmental
jurisdictions.[^325] The RFA, 5 U.S.C. § 601(3), generally defines the
term \"small business\" as having the same meaning as the term \"small
business concern\" under the Small Business Act, 15 U.S.C. § 632. 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 SBA. 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 \[SBA\] 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.\"[^326]

A small organization is generally "any not-for-profit enterprise which
is independently owned and operated and is not dominant in its
field."[^327] Nationwide, as of 1992, there were approximately 275,801
small organizations.[^328] Finally, "small governmental jurisdiction"
generally means "governments of cities, counties, towns, townships,
villages, school districts, or special districts, with a population of
less than 50,000."[^329] As of 1992, there were approximately 85,006
such jurisdictions in the United States.[^330] This number includes
38,978 counties, cities, and towns; of these, 37,566, or 96 percent,
have populations of fewer than 50,000.[^331] The United States Bureau of
the Census (Census Bureau) estimates that this ratio is approximately
accurate for all governmental entities. Thus, of the 85,006 governmental
entities, we estimate that 81,600 (91 percent) are small entities.

2\. Issues in Applying the Definition of a \"Small Business\"

As discussed below, we could not precisely apply the foregoing
definition of \"small business\" in developing our estimates of the
number of small entities to which the rules will apply. Our estimates
reflect our best judgments based on the data available to us.

An element of the definition of \"small business\" is that the entity
not be dominant in its field of operation. We are unable at this time to
define or quantify the criteria that would establish whether a specific
radio or television station is dominant in its field of operation.
Accordingly, the following estimates of small businesses to which the
new rules will apply do not exclude any radio or television station from
the definition of a small business on this basis and are therefore
overinclusive to that extent. An additional element of the definition of
\"small business\" is that the entity must be independently owned and
operated. As discussed further below, we could not fully apply this
criterion, and our estimates of small businesses to which the rules may
apply may be overinclusive to this extent. The SBA\'s general size
standards are developed taking into account these two statutory
criteria. This does not preclude us from taking these factors into
account in making our estimates of the numbers of small entities.

With respect to applying the revenue cap, the SBA has defined \"annual
receipts\" specifically in 13 C.F.R § 121.104, and its calculations
include an averaging process. We do not currently require submission of
financial data from licensees that we could use in applying the SBA\'s
definition of a small business. Thus, for purposes of estimating the
number of small entities to which the rules apply, we are limited to
considering the revenue data that are publicly available, and the
revenue data on which we rely may not correspond completely with the SBA
definition of annual receipts.

Under SBA criteria for determining annual receipts, if a concern has
acquired an affiliate or been acquired as an affiliate during the
applicable averaging period for determining annual receipts, the annual
receipts in determining size status include the receipts of both
firms.[^332] The SBA defines affiliation in 13 C.F.R. § 121.103. In this
context, the SBA\'s definition of affiliate is analogous to our
attribution rules. Generally, under the SBA\'s definition, concerns are
affiliates of each other when one concern controls or has the power to
control the other, or a third party or parties controls or has the power
to control both.[^333] The SBA considers factors such as ownership,
management, previous relationships with or ties to another concern, and
contractual relationships, in determining whether affiliation
exists.[^334] Instead of making an independent determination of whether
television stations were affiliated based on SBA\'s definitions, we
relied on the databases available to us to provide us with that
information.

3\. Estimates Based on Census Data

The proposed rules will apply to broadcast television and radio
stations.[^335] The SBA defines a television broadcasting station that
has no more than \$12.0 million in annual receipts as a small
business.[^336] Television broadcasting stations consist of
establishments primarily engaged in broadcasting visual programs by
television to the public, except cable and other pay television
services.[^337] Included in this industry are commercial, religious,
educational, and other television stations.[^338] Also included are
establishments primarily engaged in television broadcasting and which
produce taped television program materials.[^339] Separate
establishments primarily engaged in producing taped television program
materials are classified under other North American Industry
Classification (NAICS) numbers.[^340]

There were 1,695 full-service television stations operating in the as of
December 2001.[^341] According to Census Bureau data for 1997, there
were 906 Television Broadcasting firms, total, that operated for the
entire year.[^342] Of this total, 734 firms had annual receipts of
\$9,999,999.00 or less and an additional 71 had receipts of \$10 million
to \$24,999,999.00.[^343] Thus, under this standard, the majority of
firms can be considered small.

The SBA defines a radio broadcasting station that has no more than \$6
million in annual receipts as a small business.[^344] A radio
broadcasting station is an establishment primarily engaged in
broadcasting aural programs by radio to the public.[^345] Included in
this industry are commercial, religious, educational, and other radio
stations.[^346] Radio broadcasting stations which primarily are engaged
in radio broadcasting and which produce radio program materials are
similarly included.[^347] However, radio stations which are separate
establishments and are primarily engaged in producing radio program
material are classified under another NAICS number.[^348] According to
Census Bureau data for 1997, there were 4,476 Radio Stations (firms),
total, that operated for the entire year.[^349] Of this total 4,265 had
annual receipts of \$4,999,999.00 or less, and an additional 103 firms
had receipts of \$5 million to \$9,999,999.00.[^350] Thus, under this
standard, the great majority of firms can be considered small.

The proposed rules would also apply to MVPDs. SBA has developed a
definition of a small entity for cable and other program distribution,
which includes all such companies generating \$12.5 million or less in
annual receipts.[^351] This definition includes direct broadcast
satellite services (DBS), multipoint distribution systems (MDS), and
local multipoint distribution service (LMDS). According to Census Bureau
data for 1997, there were 1,311 firms within the industry category Cable
and Other Program Distribution, total, that operated for the entire
year.[^352] Of this total, 1,180 firms had annual receipts of
\$9,999,999.00 or less, and an additional 52 firms had receipts of \$10
million to \$24,999,999.00.[^353] Thus, under this standard, the
majority of firms can be considered small. Below we discuss these
services to provide a more succinct estimate of small entities.

*Cable Systems*: The Commission has developed, with SBA\'s approval, its
own definition of small cable system operators. Under the Commission\'s
rules, a \"small cable company\" is one serving fewer than 400,000
subscribers nationwide.[^354] Based on our most recent information, we
estimate that there were 1,439 cable operators that qualified as small
cable companies at the end of 1995.[^355] Since then, some of those
companies may have grown to serve more than 400,000 subscribers, and
others may have been involved in transactions that caused them to be
combined with other cable operators. Consequently, we estimate that
there are fewer than 1,439 small entity cable system operators that may
be affected by the rules proposed herein.

The Communications Act also contains a definition of a small cable
system operator, which is \"a cable operator that, directly or through
an affiliate, serves in the aggregate less than 1% of all subscribers in
the United States and is not affiliated with any entity or entities
whose gross annual revenue in the aggregate exceeds
\$250,000,000.\"[^356] The Commission has determined that there are
67,700,000 subscribers in the United States.[^357] Therefore, we found
that an operator serving fewer than 677,000 subscribers shall be deemed
a small operator, if its annual revenues, when combined with the total
annual revenues of all of its affiliates, do not exceed \$250 million in
the aggregate.[^358] Based on available data, we find that the number of
cable operators serving 677,000 subscribers or less totals approximately
1,450.[^359] Since we do not request nor collect information on whether
cable system operators are affiliated with entities whose gross annual
revenues exceed \$250,000,000, we are unable at this time to estimate
with greater precision the number of cable system operators that would
qualify as small cable operators under the definition in the
Communications Act.

*MDS:* MDS involves a variety of transmitters, which are used to relay
programming to the home or office.[^360] The Commission has defined
\"small entity\" for purposes of the 1996 auction of MDS as an entity
that, together with its affiliates, has average gross annual revenues
that are not more than \$40 million for the preceding three calendar
years.[^361] This definition of a small entity in the context of MDS
auctions has been approved by the SBA.[^362] These stations were
licensed prior to implementation of Section 309(j) of the Communications
Act of 1934, as amended.[^363] Licenses for new MDS facilities are now
awarded to auction winners in Basic Trading Areas (BTAs) and BTA-like
areas.[^364] The MDS auctions resulted in 67 successful bidders
obtaining licensing opportunities for 493 BTAs. Of the 67 auction
winners, 61 met the definition of a small business.

*LMDS*: The auction of the 1,030 LMDS licenses began on February 18,
1998, and closed on March 25, 1998. The Commission defined "small
entity" for LMDS licenses as an entity that has average gross revenues
of less than \$40 million in the three previous calendar years.[^365] An
additional classification for "very small business" was added and is
defined as an entity that, together with its affiliates, has average
gross revenues of not more than \$15 million for the preceding three
calendar years.[^366] These regulations defining "small entity" in the
context of LMDS auctions have been approved by the SBA.[^367] There were
93 winning bidders that qualified as small entities in the LMDS
auctions. A total of 93 small and very small business bidders won
approximately 277 A Block licenses and 387 B Block licenses. On March
27, 1999, the Commission reauctioned 161 licenses; there were 40 winning
bidders. Based on this information, we conclude that the number of small
LMDS licenses will include the 93 winning bidders in the first auction
and the 40 winning bidders in the reauction, for a total of 133 small
entity LMDS providers as defined by the SBA and the Commission's auction
rules.

*DBS:* Because DBS provides subscription services, it falls within the
SBA-recognized definition of "Cable and Other Program
Distribution."[^368] This definition provides that a small entity is one
with \$12.5 million or less in annual receipts.[^369] Currently, there
are nine DBS authorizations, though there are only two DBS companies in
operation at this time. We neither request nor collect annual revenue
information for DBS services, and are unable to determine the number of
DBS operators that would be considered a small business under the SBA
definition.

An alternative way to classify small entities is by the number of
employees. Based on available data, we estimate that in 1997 the total
number of full-service broadcast stations with four or fewer employees
was 5186, of which 340 were television stations.[^370] Similarly, we
estimate that in 1997, 1900 cable employment units employed fewer than
six full-time employees. Also, in 1997, 296 "MVPD" employment units
employed fewer than six full-time employees.[^371] We also estimate that
in 1997, the total number of full-service broadcast stations with five
to ten employees was 2145, of which 200 were television stations.
Similarly, we estimate that in 1997, 322 cable employment units employed
six to ten full-time employees. Also, in 1997, approximately 65 MVPD
employment units employed six to ten full-time employees.

**E. Steps Taken to Minimize Significant Economic Impact on Small
Entities, and Significant Alternatives Considered:**

The RFA requires an agency to describe any significant alternatives that
it has considered in reaching its proposed approach, which may include
the following four alternatives (among others): (1) the establishment of
differing compliance or reporting requirements or timetables that take
into account the resources available to small entities; (2) the
clarification, consolidation, or simplification of compliance or
reporting requirements under the rule for small entities; (3) the use of
performance, rather than design, standards; and (4) an exemption from
coverage of the rule, or any part thereof, for small entities.[^372]

This *Third Notice* seeks comments on the applicability of the EEO rules
to part-time employees, and would not change the status of small
broadcasters or MVPDs.

We note that the issue at hand affects the compliance burdens of
entities that, by definition, are not within our EEO small business size
standards. We have nonetheless created this present initial analysis to
encourage comments by small entities and create a fuller record.

Currently, broadcasters with station employment units of five to ten
full-time employees are provided some relief from EEO program
requirements, and station employment units of fewer than five full-time
employees are not required to demonstrate compliance with the EEO
program requirements. In addition, MVPD employment units employing six
to ten full-time employees are provided some relief from the EEO program
requirements, and MVPD employment units with fewer than six full-time
employees are not required to demonstrate compliance with the EEO
program requirements.

**F.** **Federal Rules that Overlap, Duplicate, or Conflict with the
Proposed Rules**:

We note that certain commenters have indicated that federal, state and
local EEO requirements serve much the same purpose as our EEO Rule.  We
have addressed these arguments, *supra*, in para. 130.[^373] 

**SEPARATE STATEMENT OF**

**CHAIRMAN MICHAEL K. POWELL**

*Re: Review of the Commission\'s Broadcast and Cable Equal Employment
Opportunity Rules and Policies (MM Docket No. 98-204).*

I am proud that the Commission has unanimously adopted new EEO rules.
When we issued the notice of proposed rulemaking last December, we
sought ways to revise the equal opportunity rules to be consistent with
the holding of the D.C. Circuit in
*Association*[^[1]{.underline}^](http://www.fcc.gov/Speeches/Powell/Statements/2001/stmkp145.html#fn1%23fn1).
We do so here today by establishing effective and legally sustainable
rules.

The public benefits of individuals in our society having equal
employment opportunities, based on merit rather than discriminatory
factors, are so numerous they are impossible to list. I believe few
would disagree with this proposition. Thus, it is only right and proper
for this agency to expect its licensees to afford equal opportunities
for everyone. Indeed, I believe it is our obligation to attempt to widen
the circle of those Americans that benefit from the fruits spawned by
those licenses. If the public interest benefit means anything at all it
cannot possibly tolerate the use of a government license to discriminate
against the citizens from whom the license ultimately is derived. Thus,
we will remain vigilant in our enforcement of these rules.

The rules we adopt today include a broad outreach program that is
squarely race and gender neutral and, thus, not constitutionally
suspect. The EEO rules focus on increasing the possibility that more
minorities and women get the opportunity to compete fairly for
employment. No one is entitled to rewards they did not earn. No one is
entitled to jobs for which they are not qualified. But, *everyone* is
entitled to an equal opportunity to vie for those rewards and compete
for those jobs. The outreach program provides for the simple opportunity
to compete for employment vacancies. All Americans, regardless of
stripe, benefit when our workforce captures the rich talent of our great
nation.

^1^ *MD/DC/DE Broadcasters Association v FCC, 236 F.3d 13, reh\'g den.
253 F. 3d 732 (D.C. Cir. 2001) pet for cert. Filed, MMTC v MD/DC/DE
Broadcasters Association. No. 01-639 (October 17, 2001).*

**­SEPARATE STATEMENT OF**

**COMMISSIONER KATHLEEN Q. ABERNATHY**

*Re: Review of the Commission's Broadcast and Cable Equal Employment
Opportunity Rules and Policies, MM Docket No. 98-204 (adopted November
7, 2002)*

> Today the Commission is adopting equal employment opportunity rules
> that are meaningful and effective and, just as important, will
> withstand judicial scrutiny. As I have stated previously, the
> Commission must respect the courts and craft an order consistent with
> the decisions set forth in *MD/DC/DE Broadcasters Association v. FCC*
> and *Lutheran Church-Missouri Synod v. FCC*. It would be irresponsible
> to place in jeopardy rules that can have a significant impact on the
> media opportunities available to all members of our communities by
> going down a road that is neither appropriate nor effective.
>
> I appreciate all the valuable input that we have received from
> commenters in this proceeding and the rules we have adopted are
> responsive to their concerns. Broad outreach and anti-discrimination
> rules will enable all people from various backgrounds within each
> community to become aware of specific job openings and media
> opportunities in general. In addition, the longer-term recruitment
> initiatives, including scholarships and internship programs, will help
> a wide array of people develop the knowledge and skills to pursue
> media employment opportunities. Media companies will benefit from an
> expanded range of qualified applicants from which to choose and
> candidates will have a fair opportunity to compete for jobs. In the
> end, the public benefits from services created and delivered by a
> talented workforce. The rules we adopt today do not provide better
> opportunities for any particular group, but ensure equal opportunities
> for all.

**SEPARATE STATEMENT**

**OF COMMISSIONER KEVIN J. MARTIN**

*Re: Review of the Commission\'s Broadcast and Cable Equal Employment
Opportunity Rules and Policies, Second Report and Order, MM Docket Nos.
98-204 (Nov. 7, 2002).*

I am pleased to support this Order adopting Equal Employment Opportunity
rules. Our goal has been to design an outreach program that is
comprehensive, effective, and constitutional. I believe we have
succeeded.

The program we have established ensures that broadcasters and
multi-channel video programming distributors (MVPDs) will engage in
expansive recruitment efforts, which will facilitate the ability of all
members of society to learn about openings in the media sector. By
choosing candidates from a larger, more diverse pool, broadcasters and
MVPDs will be better able to find the most qualified candidates. A more
talented workforce leads to improved programming, which ultimately
benefits all consumers. The program we adopt today therefore should
promote not just diversity, but also true competition. And -- critically
-- it will do so in manner that will withstand court scrutiny.

I note that this Order does not reinstate the requirement that licensees
submit annual reports on the race and gender make-up of their workforce.
As we stated in the NPRM, collection of this information could be useful
for analysis of industry trends, but it is not a part of our EEO program
requirement and is in fact required pursuant to a separate provisions of
our rules.[^374] We therefore will address the collection of this
information in a future proceeding.

**SEPARATE STATEMENT OF**

**COMMISSIONER MICHAEL J. COPPS**

*In the Matter of Review of the Commission's Broadcast and Cable*

*Equal Employment Opportunity Rules and Policies*

*MM Docket No. 98-204*

When we approved the Second Notice of Proposed Rulemaking that formed
the basis for the item we adopt today, I stated both my hope that the
NPRM would result in strong EEO rules that I would be able to support,
and my concern that the NPRM as written did not reflect the deep and
passionate commitment to a diverse workplace that America must have if
it is to fulfill its potential. I thank my colleagues for their
willingness to work together since then. Each of us comes at this issue
with somewhat different perspectives and premises. Each of us would
likely have written the item differently if we were assigned authorship.
Nevertheless, we engaged in dialogue so that we could reach some
compromises that would not only create rules that would withstand court
scrutiny but also \-- and for me most importantly \-- move us toward
some credible equal opportunity initiatives. I commend Chairman Powell
for his commitment to put in place rules for what I am convinced is one
of the most important issues confronting the Commission.

To me, EEO rules are indeed an essential part of the obligation to serve
the public interest. This is not an area in which we can afford to be
timid, because there is nothing less than civil rights at stake.
Diversity of viewpoint, ownership, and employment in media have long
been and continue to be fundamental public policy goals. In my view, how
we craft these rules is also related -- closely, intimately connected --
to the public interest that both the FCC and broadcasters are charged to
promote.  This is not something we do at the fringes, or something
divorced from our other ongoing work; it is, rather, at the heart of
what we do, and how we do here will affect how we do across the board.  

We are taking some first positive steps on equal employment opportunity
today. We require broadcasters and MVPDs to conduct broad outreach for
all full-time job openings, to provide information on full-time job
openings to community groups who request such information, and to
participate in a number of longer-term recruitment initiatives. In
addition, we have incorporated some of the input we received, both from
commenters and from those who joined us for the *en banc* hearing back
in June, to help make our original proposals stronger. For example, as
suggested by the Minority Media & Telecommunications Council, stations
and MVPDs that participate in job fairs under the menu of broad
recruitment options in the rules must send personnel who have
substantial responsibility for hiring decisions to those fairs. Further,
as Charles Warfield of Inner City Broadcasting suggested at the *en
banc*, we are encouraging the use of EEO training for industry
management personnel by adding it to that menu of options. I am pleased
that we will be looking more carefully at the application of the rules
to part-time employees through a further notice. I am particularly
pleased that we have emphasized in this order our commitment to examine
and act upon licensees' compliance with our EEO rules at license renewal
time. I, for one \-- and I think I am not alone \-- would be more than
amenable to imposing strong and serious sanctions -- ***very*** strong
and ***very*** serious, up to and including revocation of licenses \--
for demonstrated lack of compliance.

As I stated when we released the Second NPRM, I understand that the
decisions of the D.C. Circuit severely limited the scope of EEO rules
the Commission could adopt. I was concerned that we not react timidly to
a court decision that I personally thought was timid to begin with. Then
as now, I am saddened by any retreat in the area of equal employment
opportunity and, indeed, in civil rights generally. Nevertheless that
decision was out there, daunting and discouraging of the kind of
proactvity that many of us would like to see.

Most of us understand that we are nowhere near the objective of equal
opportunity in communications today -- not that we've reached that happy
summit in too many other areas of our national life, either. Just two
years ago, a FCC-commissioned study by the Ivy Group documented what
many of us already knew: that minorities and women have faced pervasive
discrimination in the media industry since its beginnings. The report
concluded that government actions or inaction on particular regulatory
and market issues \-- including "uneven enforcement" of EEO policy \--
have exacerbated the barriers. 

I've heard the bad news personally in my conversations with many
minority and women's groups. African American broadcasters tell me that,
even though some of them have done pretty well in this industry, they
didn't think they could repeat that success the way things are going.
Here, not so incidentally, is a hugely important area that we need to
look at intensively as we study the effects of media concentration. The
effects of consolidation are not just economic; they are many-pronged
and surely have critically important equal opportunity and diversity
implications. We have a long way to go to open wide the doors of equal
opportunity, and to keep them open, in our communications industries.

I also welcome the fact that today the Commission commits to helping
spread the word about the importance we attach to these rules. I hope we
will take full advantage of this commitment, getting out around the
country to emphasize the importance of equal opportunity and proactively
assisting the industry toward full compliance. I hope we will follow
through on this zealously, and I, for one, will be a willing and
enthused participant.

Lastly, I cannot over-emphasize the important role that must still be
fulfilled by all the individuals and organizations who assisted us in
developing and crafting these rules. We owe you a deep debt of gratitude
for all the hard work and dedication that went into this process. But as
you know better than me, equal opportunity work is never done. So you
need to help us -- no, you need to lead us -- into making this program
live and breathe and work. I'll give you just one example. There was
apprehension that, under the circumscriptions of the court, we could not
require broadcasters to send job announcement notices to minority
recruiters. That would be somehow too aggressive and intrusive. But I
don't believe there is anything constraining any individual or
organization from reaching out and urging any particular recruitment
agency to request such notices from broadcasters. And we say in the item
that said recruiter only has to ask once and it will be permanently on
the list to receive such notices. It might not be the easiest or most
ideal way to go; but it just may be workable and effective until we can
do better. So I hope we will look creatively and imaginatively and
actively at the rules being approved today. The point is that there is
nothing that prevents a broadcaster, cable operator, or any other MVPD
from taking action beyond what we require today.

While I've been in this town long enough to never be surprised, I would
surely be immensely disappointed if anyone challenged this modest
proposal. That energy could be better utilized in making the rules we
approve today work. Going forward, I would hope that, once these rules
are fully implemented, the Commission would consider pushing its equal
opportunity program further.

I hope that today's proceeding will join all stakeholders in a spirit of
working together to open the doors of equal opportunity. America is a
land of diversity. We will succeed not by regretting that diversity, but
by celebrating it. I hope all of us \-- Commission, industry, trade
associations, labor, and advocates all \-- will celebrate our diversity
by making these rules work. And when in the course of America's progress
we are one day afforded the opportunity to be even more active, I hope
we will seize that day, too.

[^1]: Our MVPD EEO rules, 47 C.F.R. § 76.71, *et seq.*, were implemented
    pursuant to Section 634 of the Cable Communications Policy Act of
    1984, Pub. L. No. 98-549, 98 Stat. 2779 (1984), that applied to
    cable operators, and the Cable Television Consumer Protection and
    Competition Act of 1992, Pub. L. No. 102-385, 106 Stat. 1460 (1992),
    that extended the rules to other MVPDs. *See also* 47 C.F.R. §§
    21.920, 25.601, 74.996, 76.1702, 76.1802, and 100.51. Our rules
    define "multichannel video programming distributor" as "an entity
    such as, but not limited to, a cable operator, a multipoint
    distribution service, a multichannel multipoint distribution service
    \["MMDS"\], a direct broadcast satellite service \["DBS"\], a
    television receive-only satellite program distributor, and a video
    dialtone program service provider..." 47 C.F.R. § 76.71(a). For
    purposes of the EEO requirements, Congress defined the term "cable
    operator" as including multichannel video programming distributors
    that control the programming they distribute. 47 U.S.C. § 554(h)(1);
    47 C.F.R. § 76.71(a). Given that our rules define MVPDs as including
    cable operators, for ease of reference we use the term MVPDs
    throughout this *Second Report and Order* to include both cable
    operators and other MVPDs. We will not apply any EEO program
    requirements to low power FM stations because the vast majority of
    this class of licensees will employ few (if any) full time, paid
    employees.

[^2]: *See Nondiscrimination in Employment Practices*, 18 F.C.C. 2d 240
    (1969).

[^3]: *See Report and Order*, 34 F.C.C. 2d 186 (1972).

[^4]: *See Cable Communications Policy Act of 1984*, Pub. L. No. 98-549,
    98 Stat. 2779 (1984).

[^5]: *See Cable Television Consumer Protection and Competition Act of
    1992*, Pub. L. No. 102-385, 106 Stat. 1460, 1498 (1992).

[^6]: 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. 1998)
    ("*Lutheran Church*").

[^7]: 141 F.3d at 352.

[^8]: 141 F.3d at 353, 354.

[^9]: 154 F.3d at 491.

[^10]: 141 F.3d at 351.

[^11]: ^?^ 154 F.3d at 492.

[^12]: 13 FCC Rcd 23004 (1998) (*1998 NPRM*).

[^13]: 15 FCC Rcd 2329 (2000) ("*Report and Order*"), *recon. denied*,
    15 FCC Rcd 22548 (2000) ("*Recon*").

[^14]: *Report and Order*, ¶ 3, 15 FCC Rcd at 2331.

[^15]: *Report and Order*, ¶ 85, 15 FCC Rcd at 2368.

[^16]: *Report and Order*, ¶¶ 95-98, 15 FCC Rcd at 2371-72.

[^17]: *Report and Order*, ¶¶ 99-103, 15 FCC Rcd at 2372-74.

[^18]: *Report and Order*, ¶ 102, 15 FCC Rcd at 2373.

[^19]: *Report and Order*, ¶ 111-13. 116-18, 15 FCC Rcd at 2376-78.

[^20]: *Report and Order*, ¶ 104, 15 FCC Rcd at 2374.

[^21]: *Id.*

[^22]: *Report and Order*, ¶ 120, 15 FCC Rcd at 2378.

[^23]: 236 F.3d at 18.

[^24]: ^?^ *Id*.

[^25]: *Id*. at 21-22.

[^26]: ^?^ *Id*. at 22.

[^27]: *Id*. at 19.

[^28]: 253 F.3d 732.

[^29]: *Id*. at 736. As a result of the Court's decision, the Commission
    suspended the portions of its broadcast and MVPD EEO rules
    concerning EEO outreach program requirements and the reporting
    requirements until further order of the Commission. *Suspension of
    the Broadcast and Cable Equal Employment Outreach Program
    Requirements*, 16 FCC Rcd 2872 (2001). The rules prohibiting
    discrimination in broadcast and MVPD employment were not suspended.

[^30]: 16 FCC Rcd 22843 (2001).

[^31]: Some comments were submitted after the April 15, 2002, deadline.
    We are accepting all of those comments in order to have the fullest
    possible record to inform our decision.

[^32]: 47 U.S.C. § 554.

[^33]: *See* Section 634(e)(1) of the Communications Act.

[^34]: *Revisions to the Standards for the Classification of Federal
    Data on Race and Ethnicity*, 62 Fed. Reg. 58782 (1997).

[^35]: 3060-0390 OMB Notice of Action dated February 24, 2000 from OMB
    to FCC.

[^36]: *See ex parte* letter dated October 28, 2002, from StBAs to FCC
    ("If the Commission believes...that it must conduct annual surveys
    of industry employment trends, it must do so by having a reputable,
    third party act as a clearing house for the aggregation of such data
    on an anonymous, non-attributable basis.").

[^37]: *Second NPRM*, ¶ 50, 16 FCC Rcd at 22858.

[^38]: We thus find no merit in StBAs' argument that resolution of \[the
    395-B\] issues is "inextricably intertwined" with the issues
    addressed in this *Second Report and Order*. *See ex parte* letter
    dated October 28, 2002, from StBAs to FCC.

[^39]: 47 U.S.C. § 554.

[^40]: In contrast, Section 634(c) simply provides that MVPDs "shall"
    comply with five listed requirements in implementing their EEO
    programs.

[^41]: NOW Reply Comments at 7; American Cable Association Reply
    Comments at 5.

[^42]: Pub. L. No. 192-385, 106 Stat. 1460 ("1992 Cable Act").

[^43]: 47 U.S.C. § 334(a).

[^44]: Conf. Rep. No. 862, 102d Cong., 2d Sess. 97 (1992). The Senate
    bill, S.12, contained no EEO provisions. Section 334, as adopted by
    the conference committee, was derived from the House amendment of
    S.12, which contained (1) provisions strengthening the cable EEO
    requirements and (2) provisions (modeled after Section 634 of the
    Communications Act) that codified and strengthened the Commission's
    existing broadcast EEO rules as applied to broadcast television
    stations entitled to cable carriage under the 1992 Cable Act. The
    conference committee adopted the House provisions applicable to
    cable entities. But instead of adopting the House provisions for
    must-carry broadcast stations, it simply codified the FCC's existing
    EEO rules for all television broadcasters by providing that the
    Commission "shall not revise" them. By including this provision in
    the 1992 Cable Act, which gave television broadcasters carriage
    rights on cable systems, Congress appeared to be trying to ensure
    that broadcast television stations and cable television operators
    were subject to comparable EEO requirements.

[^45]: 1992 Cable Act, Section 22(a). These findings are quoted in
    Section b. *infra*.

[^46]: LTVG Comments at 28-29; Golden Orange Comments at 24-27.

[^47]: LTVG Comments at 28-29; Golden Orange Comments at 18-24.

[^48]: Golden Orange Comments at 26-27.

[^49]: *Lutheran Church*, 141 F.3d at 356. If Golden Orange is
    suggesting that the D.C. Circuit invalidated only certain portions
    of the 1992 EEO program requirements and left others in effect --
    i.e., severing the unconstitutional portions -- that position is
    untenable. The *Lutheran Church* decision states simply that the
    court held the "EEO program requirements" unconstitutional, and
    nowhere suggests that any portion of those requirements were severed
    and left in effect.

[^50]: *Lutheran Church*, 141 F.3d at 356.

[^51]: *Id*.

[^52]: LTVG Comments at 29.

[^53]: *Food and Drug Administration v. Brown & Williamson Tobacco
    Corp*., 529 U.S. 120, 133 (2000), *quoting Gustafson v. Alloyd Co*.,
    513 U.S. 561, 569 (1995), and *FTC v. Mandel Brothers, Inc*., 359
    U.S. 385, 389 (1959).

[^54]: *See, e.g., Alarm Industry Communications Committee v. FCC*, 131
    F.3d 1066, 1068-69 (D.C. Cir. 1997) ("When the purported 'plain
    meaning' of a statute's word or phrase happens to render the statute
    senseless, we are encountering ambiguity rather than clarity.")

[^55]: *See Petition for Rulemaking to Require Broadcast Licensees to
    Show Nondiscrimination in Their Employment Practices*, 13 F.C.C. 2d
    766 (1968).

[^56]: *See Petition for Rulemaking to Require Broadcast Licensees to
    Show Nondiscrimination in Their Employment Practices*, 18 F.C.C. 2d
    240 (1969).

[^57]: *See, e.g*., *Petition for Rulemaking to Require Broadcast
    Licensees to Show Nondiscrimination in Their Employment Practices*,
    23 F.C.C. 2d 430 (1970); *Amendment of Part VI of FCC Forms 301,
    303, 309, 311, 314, 315, 340, and 342, and Adding the Equal
    Employment Program Filing Requirement to Commission Rules 73.125,
    73.301, 73.599, 73.680, and 73.793*, 32 F.C.C. 2d 708 (1971);
    *Nondiscrimination in the Employment Policies and Practices of
    Broadcast Licensees*, 60 F.C.C. 2d 226 (1976) ("*1976 Report and
    Order*"). *See also Memorandum of Understanding Between the Federal
    Communications Commission and the Equal Employment Opportunity
    Commission*, 70 F.C.C. 2d 2320 (1978) (delineating the Commission's
    investigative jurisdiction and methods of cooperation with the Equal
    Employment Opportunity Commission ("EEOC")).

[^58]: *See, e.g.*, *San Luis Obispo Broadcasting Ltd. Partnership*, 13
    FCC Rcd 1020 (1998); *Valley Television, Inc.*, 12 FCC Rcd 22795
    (1998); *Congaree Broadcasting, Inc.*, 5 FCC Rcd 7691 (1990); *South
    Plains Broadcasting Company, Inc.*, 101 F.C.C. 2d 1364 (1985).

[^59]: *See, e.g.*, *Davidson County Broadcasting Company, Inc.*, 12 FCC
    Rcd 12245 (1997); *Broadcast Associates, Inc.*, 11 FCC Rcd 15479
    (1996); *Buckley Broadcasting Corp.*, 11 FCC Rcd 6628 (1996);
    *Lanser Broadcasting Corp.*, 10 FCC Rcd 12121 (1995); *Ogden
    Broadcasting of South Carolina, Inc.*, 7 FCC Rcd 1895 (1992).

[^60]: *Bilingual,* 595 F.2d at 628-29 ("\[I\]n implementing its
    anti-discrimination policy, the Commission of necessity must
    investigate broadcasters' past employment practices. A documented
    pattern of intentional discrimination would put seriously into
    question a licensee's character qualification to remain a licensee:
    intentional discrimination almost invariably would disqualify a
    broadcaster from a position of public trusteeship.").

[^61]: *NAACP v. FPC*, 425 U.S. 662, 670 n.7 (1976).

[^62]: *See, e.g., Haig v. Agee,* 453 U.S. 280, 300-06 (1981) ("*Haig*")
    (long-standing interpretation by the Secretary of State of its power
    under Passport Act of 1926 as encompassing the power to revoke
    passports to prevent damage to national security or foreign policy
    was ratified by congressional acquiescence, even though Secretary
    exercised power infrequently); *Lorillard v. Pons,* 434 U.S. 575,
    580-85 (1978) ("*Lorillard*") (Congress is presumed to be aware of
    administrative and judicial interpretations of a statute and to
    adopt and ratify those interpretations when it re-enacts a statute
    without change or incorporates in a new law sections of a prior law
    that have a settled interpretation); *Zemel v. Rusk,* 381 U.S. 1,
    9-13 (1965) ("*Zemel*") (Secretary of State's interpretation of
    Passport Act of 1926 as authorizing him to impose area restrictions
    was ratified by Congress when it left untouched the Secretary's
    broad rulemaking authority when it later enacted legislation
    relating to passports); *Norwegian Nitrogen Products Co. v. U.S.*,
    288 U.S. 294, 313-15 (1933) ("administrative practice, consistent
    and generally unchallenged, will not be overturned except for very
    cogent reasons if the scope of the command is indefinite and
    doubtful").

[^63]: *See, e.g.*, *1969 Report and Order*, 18 F.C.C. 2d at 241-42;
    *1976 Report and Order*, 60 F.C.C. 2d at 229; *Report*, 9 F.C.C. Rcd
    at 6285-87.

[^64]: 47 U.S.C. § 554.

[^65]: Pub. L. No. 98-549, 98 Stat. 2779 ("1984 Cable Act").

[^66]: H.R. Rep. No. 934, 98th Cong., 2d Sess. 86 (1984), *reprinted in*
    \[1984\] U.S. Cong. News 4655. The Senate bill that was ultimately
    enacted, S. 66, did not contain EEO provisions. The EEO provisions
    that were eventually enacted as Section 634 originated in Section
    635 of H.R. 4103, which is explained in H.R. Report No. 934,
    discussed below. The Senate adopted the explanation of H.R. 4103
    contained in H.R. Report No. 934. *See* 130 C.R. S.14285 (Oct. 11,
    1985), *reprinted in* \[1984\] U.S. Cong. News 4738.

[^67]: 47 U.S.C. § 554(b), (c), (d).

[^68]: H.R. Rep. No. 934, 98th Cong., 2d Sess. 84-85 (1984) (emphasis
    added).

[^69]: *Id*. at 86.

[^70]: *Id*.

[^71]: *Id*. at 87.

[^72]: Pub. L. No. 192-385, 106 Stat. 1460.

[^73]: 1992 Cable Act, Section 22(a) (emphasis added). *See also* H.R.
    Rep. No. 628, 102d Cong., 2d Sess. 111-17 (1992).

[^74]: 47 U.S.C. § 334. *See also* Conf. Rep. No. 862, 102d, 2d Sess. 97
    (1992).

[^75]: As discussed above, to the extent that the court in *Lutheran
    Church* invalidated the 1992 EEO rules, the Commission cannot
    continue to enforce them. But Section 334 does require that the
    Commission continue to enforce against television broadcasters the
    nondiscrimination requirement, which was not invalidated.

[^76]: 1992 Cable Act, Section 22(g) (emphasis added).

[^77]: We note that the Commission's EEO rules for broadcasters apply to
    radio as well as television stations.

[^78]: *See, e.g., Bob Jones University v. United States*, 461 U.S. 574
    (1983) ("*Bob Jones University*").

[^79]: *Haig,* 453 U.S. at 300, *citing Zemel*, 381 U.S. at 11 and other
    Supreme Court cases.

[^80]: The facts here give rise to an even stronger inference of
    congressional ratification than was present in *City of New York v.
    FCC*, 486 U.S. 57 (1988), for example. In that case, cable
    television franchisors challenged the Commission's authority, in
    adopting regulations establishing cable signal quality technical
    standards, to forbid state and local authorities to impose more
    stringent technical standards. In determining that the Commission
    acted within its statutory authority in preempting state and local
    standards, the Supreme Court found that Congress in the Cable Act of
    1984 endorsed the Commission's longstanding policy of federal
    preemption of cable technical standards, and that it was "quite
    significant" that there was no evidence of any intent by Congress to
    "overturn the Commission's decade-old policy without any discussion
    or even any suggestion that it was doing so." *Id*. at 67-68. In the
    case of the Commission's jurisdiction to regulate in the EEO area,
    there is affirmative evidence of congressional approval of the
    Commission's statutory authority.

[^81]: *See, e.g., City of New York v. FCC, supra; Bob Jones
    University,* 461 U.S. at 601 (finding that "Congress affirmatively
    manifested its acquiescence" in the IRS' statutory interpretation
    that educational institutions that discriminate on the basis of race
    are not eligible for an income tax exemption when it enacted a new
    provision denying tax-exempt status to social clubs that
    discriminate on the basis of race); *U.S. v. Rutherford,* 442 U.S.
    544, 554 n.10 (1979) ("once an agency's statutory construction has
    been fully brought to the attention of the public and the Congress
    and the latter has not sought to alter that interpretation although
    it has amended the statute in other respects, then presumably the
    legislative intent has been correctly discerned"), *quoting Apex
    Hosiery Co. v. Leader*, 310 U.S. 469, 487-89 (1940); *Lorillard*,
    434 U.S. at 580 (where Congress adopted a new law incorporating
    sections of a prior law, it can be presumed to have had knowledge of
    and approved the interpretation given to the prior law); *Zemel,*
    381 U.S. at 12 (Congress ratified Secretary of State's authority to
    refuse to impose area restrictions on travel when "\[d\]espite 26
    years of executive interpretation of the 1926 Act as authorizing the
    imposition of area restrictions, Congress in 1952, though it once
    again enacted legislation relating to passports, left completely
    untouched the broad rule-making authority granted in the earlier
    Act.").

[^82]: *Food and Drug Administration v. Brown & Williamson Tobacco
    Corp*., 529 U.S. 120, 133 (2000) (citations omitted from quotation),
    *quoting Gustafson v. v. Alloyd Co*., 513 U.S. 561, 569 (1995) and
    *FTC v. Mandel Brothers, Inc*., 359 U.S. 385, 389 (1959).

[^83]: *Lindahl v. Office of Personnel Management*, 470 U.S. 768, 799
    (1985); *Crown Simpson Pulp Co. v. Costle,* 445 U.S. 193, 197
    (1980).

[^84]: 47 U.S.C. §§ 334, 554.

[^85]: StBAs Comments at 31.

[^86]: LTVG Comments at 31.

[^87]: *See* cases discussed at notes Error: Reference source not found,
    Error: Reference source not found-Error: Reference source not found,
    *supra*. For example, in *Zemel v. Rusk*, 381 U.S. 1 (1965), the
    Supreme Court held that the Secretary of State's imposition of new
    area restrictions on passports in 1961 was within its statutory
    authority under the Passport Act of 1926 because Congress had
    ratified the Secretary's authority to impose such restrictions in
    1952 by enacting passport legislation without tampering with the
    rulemaking authority granted to the Secretary in the 1926 Act. The
    Secretary's exercise of that authority in 1961 to restrict travel to
    Cuba was deemed a proper exercise of its statutory authority even
    though no passports were required prior to 1961 -- or at the time of
    Congressional ratification -- for travel anywhere in the Western
    Hemisphere.

[^88]: ^?^ The NAB asserts that the \"outcome of \[a continuous pattern
    of broad, meaningful\] outreach, namely, a highly qualified, diverse
    workforce, causes the best possible product for radio and television
    stations . . .\" NAB Comments at 68. While professing to support the
    adoption of EEO rules, at least if they conform to its proposal, the
    NAB nevertheless asserts that it \"does not believe that the
    Commission\'s authority to re-regulate in this area is
    indisputable.\" NAB Comments at 63. It is not clear why the NAB is
    advocating rules that it believes the Commission has questionable
    authority to adopt. In any event, it does not address the
    Commission\'s showing that Congress has ratified the Commission\'s
    authority under the public interest standard to regulate the EEO
    practices of broadcasters. Nor does it attempt to rationalize the
    bizarre jurisdictional patchwork that would result if the Commission
    concluded that it has authority to regulate the EEO practices of
    cable operators and all other MVPDs under Section 634 of the Act -
    which is undisputed and indisputable - but has no authority to
    regulate the EEO practices of broadcasters.

[^89]: *See, e.g.,* Report and Order, ¶¶ 42-62, 15 FCC Rcd at 2346-2358.

[^90]: 16 FCC Rcd at 22849.

[^91]: Section 73.2080(a).

[^92]: 236 F.3d at 23. In its rehearing petition, the Commission
    interpreted the court's decision as vacating only those subsections
    of the EEO rule involving the Option A and B EEO program
    requirements, *i.e.*, 47 C.F.R. § 73.2080(c), (d) and (e), as well
    as those portions of subsections (f), (g), and (i) that
    cross-reference those provisions. Commission Petition for Rehearing
    and Suggestion for Rehearing En Banc, filed March 2, 2001, at 10
    n.1. The court did not address this interpretation in its rehearing
    order, and no commenter has suggested that the court intended to
    invalidate the nondiscrimination requirement.

[^93]: 595 F.2d 621 (D.C. Cir. 1978).

[^94]: *Id*. at 629.

[^95]: 47 U.S.C. §§ 334 and 554. *See* ¶¶ 19-20, 26, *supra*. Section
    554(b) also prohibits MPVDs from discriminating on the basis of age.

[^96]: StBAs Comments at 35-39.

[^97]: As discussed above, because the nondiscrimination requirement was
    not invalidated by the court, we must continue to enforce it against
    television broadcasters under Section 334.

[^98]: 47 C.F.R. § 73.2080(a).

[^99]: *Report and Order*, ¶157-161, 15 FCC Rcd at 2392-93.

[^100]: NRB Comments at 4. NRB correctly notes that our reference to
    "articles of incorporation" in the *Report and Order* was intended
    to refer to any valid organizational documents of an entity, not
    just to a document entitled "articles of incorporation."

[^101]: Lutheran Church Reply Comments at 3.

[^102]: *Report and Order*, ¶ 157-161, 15 FCC Rcd at 2392-93.

[^103]: *Report and Order*, ¶ 74, 15 FCC Rcd at 2362-63.

[^104]: *See, e.g.,* StBAs Comments at 7.

[^105]: StBAs Comments at 32.

[^106]: NAB Comments at 4-10.

[^107]: StBAs Comments at 12.

[^108]: StBAs Comments at 31-34.

[^109]: 1992 Cable Act, Section 22(a).

[^110]: ^?^ MMTC submitted a study long after the comment period closed
    in this proceeding that purports to show intentional discrimination
    in the broadcast and MVPD industries based upon lower than average
    minority employment rates. *See ex parte* letter dated October 1,
    2002, from MMTC to FCC, Exhibit 1 ("The Reality of Intentional Job
    Discrimination in Metropolitan America -- 1999" by Alfred W.
    Blumrosen and Ruth G. Blumrosen). Given that we have not thoroughly
    analyzed this study nor received comment on it, we do not rely on
    its findings to support adoption of new EEO rules. At any rate, we
    are not convinced that deviations below the average employment rate
    can be equated with intentional discrimination.

[^111]: StBAs Comments at 34.

[^112]: Furthermore, the Associations' efforts have not been universal;
    we can assume, for example, that if 29 State Associations (except
    for North Carolina, which is not included in StBAs' comments)
    participated in job fairs, the others did not.

[^113]: June 24, 2002 EEO *En Banc* Hearing, Tr. 71-72.

[^114]: AFTRA Comments ¶ 19; statement of Gregory Hessinger, AFTRA
    National Executive Director, June 24, 2002 EEO *En Banc* Hearing at
    Tr. 37. *See also* NAB Reply Comments at 17 (NAB criticizes AFTRA's
    contention as lacking specificity).

[^115]: Radio One Comments at 5-6.; statement of Catherine L. Hughes,
    Founder and Chairperson of Radio One, June 24, 2002 EEO *En Banc*
    Hearing at Tr. 77 *et seq*.

[^116]: June 24, 2002 EEO *En Banc* Hearing at Tr. 98 *et seq*.

[^117]: June 24, 2002 EEO *En Banc* Hearing at Tr. 100-101.

[^118]: NCTA Comments at 1.

[^119]: NCTA Comments at 3.

[^120]: NCTA Comments at 4.

[^121]: NCTA Comments at 5, 9.

[^122]: *See* MMTC Comments at 42-47.

[^123]: As an example, EEOC reported that, from 1997 to 2001, it filed
    1,963 lawsuits alleging discrimination, of which 1,723 were
    resolved. Of resolutions, 57.73 percent were by consent decree, 27.5
    percent were by settlement agreement, and 2.13 percent were by
    voluntary dismissal. Only 12.69 percent were resolved by court
    order. EEOC, "A Study of the Litigation Program Fiscal Years
    1997-2001," released August 13, 2002, at ¶ B.2, B.3, and B.7. *See*
    http://www.eeoc.gov/litigation/study/study.htm.

[^124]: AWRT Comments at 3 and Appendix A.

[^125]: StBAs Reply Comments at 13-14.

[^126]: <http://www.rtnda.org/research/womin.shtml>. A copy of this
    document has also been placed in the record in this proceeding.

[^127]: *Report and Order,* ¶ 3, 15 FCC Rcd at 2331; *Second NPRM*, ¶
    15, 16 FCC Rcd at 22847.

[^128]: *See, e.g.,* Comments of StBAs and The Local Television Group.

[^129]: StBAs Comments at 31-32 (emphasis added).

[^130]: *Second NPRM*, ¶ 15, 16 FCC Rcd at 22847.

[^131]: NAB Comments at 11-14.

[^132]: NAB submitted a similar proposal in response to the *1998 NPRM*;
    however, its plan at that time contemplated compliance every two
    years, rather than the four years in its current proposal. *Report
    and Order*, ¶ 81, 15 FCC Rcd at 2366.

[^133]: StBAs Comments, Exhibit A. NAB also references an alternative
    plan submitted by StBAs, which we will address below.

[^134]: *Report and Order*, ¶ 133, 15 FCC Rcd at 2383.

[^135]: *See* 41 C.F.R. §§ 60-1.4 and 60-1.5.

[^136]: *See* 41 C.F.R. § 60-1.40 and Part 60-2.

[^137]: *See* 41 C.F.R. § 60-1.20.

[^138]: *Report and Order*, ¶ 91, 15 FCC Rcd at 2370.

[^139]: StBAs Comments at 54. Forty-six of the Named State Broadcast
    Associations submitted a similar proposal in response to the *1998
    NPRM*; the plan at that time contemplated that stations would
    recruit for at least 67 percent of their full-time vacancies.
    *Report and Order*, ¶ 82, 15 FCC Rcd at 2367.

[^140]: *Second NPRM*, ¶ 25, 16 FCC Rcd at 22851.

[^141]: *Report and Order*, ¶ 89, 15 FCC Rcd at 2369.

[^142]: NAB Comments at 46-47.

[^143]: *Id*. at 47-49.

[^144]: *Id*. at 49.

[^145]: *Id*. at 50.

[^146]: *Report and Order*, ¶ 85, 15 FCC Rcd at 2368.

[^147]: ^?^ *Id*. For example, if a broadcaster placed advertisements
    for a general manager position in a widely circulated local
    newspaper every day for a week, we would consider this recruiting
    effort to be sufficient to ensure wide dissemination reasonably
    calculated to reach the entire community. We offer this example
    merely to provide guidance; it does not establish a specific
    benchmark to meet.

[^148]: *Recon*, ¶ 71, 15 FCC Rcd at 22568.

[^149]: StBAs Comments at p. 51-53; NAB Comments at 39; The Local
    Television Group Comments at 13-20.

[^150]: *MyStar Communications Corporation*, 12 FCC Rcd 5239, 5244
    (1997).

[^151]: MMTC Comments at 79-84.

[^152]: *Second NPRM*, ¶ 23, 16 FCC Rcd at 22850.

[^153]: NAB Comments at 43-44.

[^154]: *Recon*, ¶ 68, 15 FCC Rcd at 22567.

[^155]: ^?^ Although we are according discretion regarding the
    definition of "community," we expect broadcasters to be able to
    provide a reasonable explanation for their determinations should it
    become pertinent. Thus, we would be concerned if the circumstances
    suggested that a broadcaster is unreasonably defining its community
    in a manner that excludes certain areas or populations that it
    clearly does serve.

[^156]: LTVG Comments at 18; Radio Licensees Comments at 2.

[^157]: LTVG Comments at 14.

[^158]: LTVG Comments at 18.

[^159]: LTVG Comments at 18-20.

[^160]: *Report and Order*, ¶ 86-87, 15 FCC Rcd at 2368-69.

[^161]: NAB Comments at p. 5; StBAs Comments at 22-23.

[^162]: NCTA Comments at 10=11.

[^163]: Cox Comments.

[^164]: *Report and Order*, 15 FCC Rcd at 2368 n. 174.

[^165]: National Telecommunications and Information Administration, "A
    Nation Online: How Americans are Expanding Their Use of the
    Internet" (February 2002) ("NTIA Study").

[^166]: The NTIA statistics did not provide comparable statistics on
    Internet usage by American Indians/Alaskan natives.

[^167]: *See, e.g.,* NAB Comments at 40-41; StBAs Comments at 43.

[^168]: *See, e.g.,* MMTC Comments at 112-13; NOW Comments at 6; AWRT
    Comments at 11; and AFTRA Comments ¶ 32.

[^169]: NTIA Study at Table 2-2.

[^170]: *Report and Order*, ¶ 90, 15 FCC Rcd at 2369

[^171]: MMTC Comments at 73-74, 145.

[^172]: MMTC Comments at 72-73.

[^173]: *Report and Order*, ¶ 88, 15 FCC Rcd at 2369.

[^174]: *Recon*, 15 FCC Rcd at 22563 n. 48. *See also* StBAs Comments at
    54-55; Comments of Broadcast Compliance Services.

[^175]: If an employee is hired with the expectation that successful
    completion of an initial probation will result in an eventual
    elevation to permanent status, we would not regard that as a
    temporary hire and would expect regular recruitment for that
    position.

[^176]: *See, e.g.,* *WFSQ (FM)*, 7 FCC Rcd 6045, 6046 (1992);
    *Enterprise Media of Toledo, L.P.*, 12 FCC Rcd 3920, 3923-24 (1997).

[^177]: *Report and Order*, ¶ 110, 15 FCC Rcd at 2375-76.

[^178]: AWRT Comments at 9-11; *see also* NOW Comments at 8-10.

[^179]: *Recon*, ¶ 67, 15 FCC Rcd at 22567.

[^180]: StBAs Comments at 54. (StBAs supported retention of this
    requirement in the context of its recruitment proposal.)

[^181]: LTVG Comments at 20-22.

[^182]: LTVG Comments at 20-21.

[^183]: LTVG Comments at 22.

[^184]: 46 Named StBAs Comments at Exhibit 1, p. 2.

[^185]: MMTC Comments at 116-19; AFTRA Comments ¶ 35; statement of
    Charles Warfield, President and Chief Operating Officer of ICBC
    Broadcast Holdings, June 24, 2002, EEO *En Banc* Hearing, Tr. 102.

[^186]: NOW Comments at 11-13.

[^187]: *Report and Order,* ¶ 103, 15 FCC Rcd at 2373.

[^188]: *Recon*, ¶ 56-60, 15 FCC Rcd at 22564-65.

[^189]: LTVG Comments at 23-27.

[^190]: These types of non-vacancy-specific outreach efforts have been
    advocated by some broadcasters. *See* NAB Comments at 22-27;
    statement of Marilyn Kushak, Vice President of Midwest Family
    Broadcasters, June 24, 2002 EEO *En Banc* Hearing at Tr. 30-34.

[^191]: *Recon,* ¶ 78, 15 FCC Rcd at 22570.

[^192]: TBN Comments.

[^193]: Comments of Association of Public Television Stations; Comments
    of National Public Radio; Comments of State University of New York;
    and Comments of School Board of Broward County, Florida.

[^194]: ^?^ We wish to make clear that a noncommercial licensee can
    claim credit for efforts made pursuant to other regulations that
    also comply with our requirements. Thus, if stations are subject to
    EEO requirements that are the same or more extensive than ours, they
    would most likely be in compliance with our rules and our rules
    would impose no additional burden.

[^195]: 47 C.F.R. Part 73, Subpart F, §§ 73.701 *et seq.*

[^196]: *Recon*, 15 FCC Rcd at 22562 n.45.

[^197]: *Second NPRM*, ¶ 32, 16 FCC Rcd at 22853.

[^198]: MMTC Comments at 140-44.

[^199]: NOW Comments at 15-16.

[^200]: StBAs Comments at 41-42.

[^201]: NCTA Comments at 15.

[^202]: *Recon*, ¶ 79, 15 FCC Rcd at 22570.

[^203]: We recognize that in some years the licensee may not have
    implemented any outreach initiatives. If a broadcaster has deferred
    its initiatives to the second year of the implementation cycle, it
    may indicate \"none\" in the EEO public file report for the first
    year, accompanied by an appropriate explanation.

[^204]: *Recon*, ¶ 80, 15 FCC Rcd at 22570.

[^205]: StBAs Comments at 55.

[^206]: *Report and Order*, ¶ 123, 15 FCC Rcd at 2379.

[^207]: NAB Comments at 36; Statement of Ann Arnold, Executive Director,
    Texas Association of Broadcasters at EEO *En Banc* Hearing, Tr.
    41-43.

[^208]: ^?^ Although the reports must be retained in the public file
    until final action has been taken on the station's next renewal
    application, all reports need not be maintained on the station's web
    site. The requirement to post a station's EEO public file report on
    its web site extends only to the current report. Also, we require
    only that the information contained in the EEO public file report be
    placed on the web site. A scanned copy of the actual paper report
    contained in the public file need not be placed on the web site; any
    legible format may be used.

[^209]: *Recon*, ¶ 32-33, 15 FCC Rcd at 22558.

[^210]: *Notice of Proposed Rule Making in MM Docket No. 00-168*, 15 FCC
    Rcd 19816 (2000), cited in NAB Comments at 29 -33.

[^211]: In addition, according to a 2001 survey, 91 percent of
    television stations and 75 percent of radio stations operate web
    sites. Furthermore, 91 percent of television stations post local
    news on their web sites and numerous stations have elaborate and
    sometimes continuously updated special features such as neighborhood
    weather forecasts. "RTNDA/Ball State University, Radio and
    Television Web Survey (2001)," available at
    http://www.rtnda.org/technology/web.shtml#survey. Cited by NOW Reply
    Comments at 23.

[^212]: *Recon*, ¶ 33, 15 FCC Rcd at 22558.

[^213]: *Report and Order*, ¶ 124, 15 FCC Rcd at 2380.

[^214]: AWRT Comments at 15.

[^215]: *Report and Order*, ¶ 108, 15 FCC Rcd at 2375.

[^216]: *Recon*, ¶ 74, 15 FCC Rcd at 22569.

[^217]: 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.

[^218]: 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.

[^219]: 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, as well as the report placed in the public file
    on February 1, 2003.

[^220]: Licensees of low power FM (LPFM) stations are subject to the
    Commission's prohibition against employment discrimination. *See* 47
    C.F.R. § 73.881. However, LPFM licensees are not required to comply
    with any EEO program requirements. As we stated in the LPFM Report
    and Order, "\[b\]ecause we anticipate that the vast majority of this
    class of licensees will employ very few (if any) full-time, paid
    employees, we do not intend to require LPFM licensees to comply with
    any EEO program requirements we adopt in our rulemaking proceeding."
    *Report and Order*, 15 FCC Rcd 2205, 2278 (2000).

[^221]: *Recon*, ¶ 48, 15 FCC Rcd at 22562.

[^222]: NAB Comments at 36. *See also* June 24, 2002 EEO *En Banc*
    Hearing, Tr. 41-42.

[^223]: 47 U.S.C. § 309(d)(1).

[^224]: *Bilingual Bicultural Coalition on Mass Media, Inc. v. FCC*, 595
    U.S. 621, 628-29 (D.C. Cir. 1978) (en banc).

[^225]: ^?^ The EEO page can be found at
    [www.fcc.gov/mb/policy/eeo/](http://www.fcc.gov/mb/policy/eeo/).

[^226]: ^?^ Consumers can contact our consumer centers by calling
    1-888-CALL-FCC (1-888-225-5322) (Voice) and 1-888-TELL-FCC
    (1-888-835-5322) (TTY). Consumer information is available on the
    Commission website at [www.fcc.gov/cgb]{.underline} .

[^227]: ^?^ The EEO staff can be reached at (202) 418-1450.

[^228]: StBAs Comments at 5.

[^229]: MMTC Comments at 137.

[^230]: *Second NPRM*, ¶ 35, 16 FCC Rcd at 22854.

[^231]: StBAs Comments at 56;

[^232]: MMTC Comments at 61 n. 165.

[^233]: *Report and Order*, ¶ 126, 15 FCC Rcd at 2381.

[^234]: *Report and Order*, 15 FCC Rcd at 2381 n.195.

[^235]: *Second NPRM* ¶ 29, 48, 16 FCC Rcd at 22852, 22857.

[^236]: *Report and Order*, ¶ 126. 15 FCC Rcd at 2381.

[^237]: NAB Comments at 54-58.

[^238]: Association of Public Television Stations Comments at 8-9.

[^239]: LTVG Comments at 33.

[^240]: MMTC Comments at 97-100; NOW Comments at 22-27; AWRT Comments at
    17-18; NAACP Comments at 2-3; Lawyers' Committee for Civil Rights
    Under Law Comments at 5.

[^241]: Our analysis of FCC Form 395-B forms filed in 2000 reflects that
    there were 4,802 stations reporting five to ten full-time employees.
    This represents 33.4 percent of the 14,393 stations licensed as of
    September 30, 2000, the deadline for the filing of the 2000 Form
    395-B.

[^242]: The most recent OMB definition of metropolitan areas is
    contained in OMB Bulletin No. 99-04 (June 30, 1999). *See*
    http:\\\\www.whitehouse.gov\\omb\\inforeg\\msa-bull99-04.html.
    Metropolitan areas with a population of fewer than 250,000 are
    defined as Level C and D MSAs or primary MSAs (PMSAs). OMB Bulletin
    No. 99-04 may be used initially to define areas subject to this
    provision. OMB has adopted new metropolitan area standards and will
    announce definitions of areas based on the new standards and Census
    2000 data in 2003. *Standards for Defining Metropolitan and
    Micropolitan Statistical Areas*, 65 Fed. Reg. 82228 (2000).

[^243]: NAB Comments at 58-59.

[^244]: *Recon*, ¶ 12-15, 15 FCC Rcd at 22553.

[^245]: *Recon*, ¶ 82, 15 FCC Rcd at 22571.

[^246]: *Second NPRM*, ¶ 1, 16 FCC Rcd at 22843.

[^247]: LTVG Comments at 32-33.

[^248]: NCTA Comments at 3-4.

[^249]: ACA Comments at 2.

[^250]: *Implementation of Sections of the Cable Television Consumer
    Protection and Competition Act of 1992: Rate Regulation*, 10 FCC Rcd
    7393 (1995).

[^251]: ACA Comments at 7.

[^252]: StBAs Reply Comments at 9-12.

[^253]: LTVG Comments at 34; Radio Licensees Comments at 6.

[^254]: We note that we have concluded in the past that disclosure
    requirements promote First Amendment interests by increasing the
    flow of information to the public. *See, e.g., Policies and Rules
    Concerning Children's Television Programming,* 11 F.C.C. Rcd 10660,
    10684 (1996). *See also Meese v. Keene,* 481 U.S. 465 (1987)
    (upholding film labeling requirements under First Amendment).

[^255]: *See* ¶ 104, *supra*.

[^256]: *See* 5 U.S.C. § 603.

[^257]: *See* 5 U.S.C. § 603. The RFA, *see* 5 U.S.C. § 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).

[^258]: *See* *Review of the Commission\'s Broadcast and Cable Equal
    Employment Opportunity Rules and Policy*, 16 FCC Rcd 22843, 22862
    (2001).

[^259]: *See* 5 U.S.C. § 604.

[^260]: *See* para. 177, *supra.*

[^261]: Letter from Aida Alvarez, Administrator, U.S. Small Business
    Administration, to Roy Stewart, Chief, Mass Media Bureau, Federal
    Communications Commission (January 19, 2000).

[^262]: These requirements are described more fully in the text of the
    *Second* *Report and Order*, *supra*, and will be codified at 47
    C.F.R. § 73.2080 (broadcasting) and 47 C.F.R. §§ 76.75, 76.77, and
    76.1702 (MVPDs).

[^263]: ^?^ 5 U.S.C. § 603(b)(3).

[^264]: ^?^ 5 U.S.C. § 601(6).

[^265]: ^?^ 5 U.S.C. § 601(3).

[^266]: 5 U.S.C. § 601(4).

[^267]: 1992 Economic Census, U.S. Bureau of the Census, Table 6
    (special tabulation of data under contract to Office of Advocacy of
    the U.S. Small Business Administration).

[^268]: 5 U.S.C. § 601(5).

[^269]: U.S. Dept. of Commerce, Bureau of the Census, "1992 Census of
    Governments."

[^270]: *Id.*

[^271]: ^?^ 13 C.F.R. § 121.104(d)(1).

[^272]: ^?^ 13 C.F.R. § 121.103(a)(1).

[^273]: ^?^ 13 C.F.R. § 121.103(a)(2).

[^274]: ^?^ While we believe that the SBA's definition of "small
    business" in this context greatly overstates the number of radio and
    television broadcast stations that are small businesses and is not
    suitable for purposes of determining the impact of the rules on
    small television and radio stations, for purposes of this FRFA, we
    include the SBA's definition in determining the number of small
    businesses to which the rules would apply.

[^275]: ^?^ 13 C.F.R. § 121.201, North American Industry Classification
    System (NAICS) code 513120.

[^276]: ^?^ Economics and Statistics Administration, Bureau of Census,
    U.S. Department of Commerce, 1992 Census of Transportation,
    Communications and Utilities, Establishment and Firm Size, Series
    UC92-S-1, Appendix A-9 (1995).

[^277]: ^?^ *Id.; see* Executive Office of the President, Office of
    Management and Budget, *Standard Industrial Classification Manual*,
    at NAICS code 513120.

[^278]: ^?^ 1992 Census, Series UC92-S-1, at Appendix A-9.

[^279]: ^?^ *Id*.; formerly SIC code 7812 (Motion Picture and Video Tape
    Production) (NAICS code 512110); formerly SIC code 7922 (Theatrical
    Producers and Miscellaneous Theatrical Services) (producers of live
    radio and television programs) (NAICS codes 512110, 512191, 512290).

[^280]: ^?^ FCC News Release, Broadcast Station Totals as of December
    31, 2001 (released May 21, 2002).

[^281]: ^?^ U.S. Census Bureau, 1997 Economic Census, Subject Series:
    Information, "Receipts Size of Firms Subject to Federal Income Tax:
    1997," Table 4, NAICS code 513120 (issued Oct. 2000).

[^282]: ^?^ *Id.* The census data do not provide a more precise
    estimate.

[^283]: ^?^ 13 C.F.R. § 121.201, NAICS codes 513111 and 513112.

[^284]: ^?^ 1992 Census, Series UC92-S-1, at Appendix A-9.

[^285]: ^?^ *Id.*

[^286]: ^?^ *Id*.

[^287]: ^?^ *Id*.

[^288]: ^?^ U.S. Census Bureau, 1997 Economic Census, Subject Series:
    Information, "Receipts Size of Firms Subject to Federal Income Tax:
    1997," Table 4, NAICS code 513220 (issued Oct. 2000).

[^289]: ^?^ *Id.* The census data do not provide a more precise
    estimate.

[^290]: ^?^ 13 C.F.R. § 121.201 (NAICS codes 513210 and 513220).

[^291]: ^?^ U.S. Census Bureau, 1997 Economic Census, Subject Series:
    Information, "Receipts Size of Firms Subject to Federal Income Tax:
    1997," Table 4, NAICS code 513220 (issued Oct. 2000).

[^292]: ^?^ *Id.* The census data do not provide a more precise
    estimate.

[^293]: ^?^ 47 C.F.R. § 67.901(3). The Commission developed this
    definition based on its determination that a small cable system
    operator is one with annual revenues of \$100 million or less.
    *Implementation of Sections of the 1992 Cable Act: Rate Regulation,
    Sixth Report and Order and Eleventh Order on Reconsideration*, 10
    FCC Rcd 6393 (1995).

[^294]: ^?^ Paul Kagan Associates, Inc., Cable TV Investor, Feb. 29,
    1996 (based on figures for Dec. 30, 1995).

[^295]: ^?^ 47 U.S.C. § 543(m)(2).

[^296]: ^?^ FCC Announces New Subscriber Count for the Definition of
    Small Cable Operator, Public Notice DA 01-158 (January 24, 2001).

[^297]: ^?^ 47 C.F.R. § 76.1403(b) (SIC 4833).

[^298]: ^?^ Paul Kagan Associates, Inc., Cable TV Investor, Feb. 29,
    1996 (based on figures for Dec. 30, 1995).

[^299]: ^?^ For purposes of this item, MDS includes the single channel
    Multipoint Distribution Service (MDS) and the Multichannel
    Multipoint Distribution Service (MMDS).

[^300]: ^?^ 47 C.F.R. § 1.2110(a)(1).

[^301]: ^?^ *See Amendment of Parts 21 and 74 of the Commission\'s Rules
    With Regard to Filing Procedures in the Multipoint Distribution
    Service and in the Instructional Television Fixed Service and
    Implementation of Section 309(j) of the Communications Act -
    Competitive Bidding,* MM Docket No. 94-131 and PP Docket No. 93-253,
    Report and Order, 10 FCC Rcd 9589 (1995).

[^302]: ^?^ 47 U.S.C. § 309(j). (Hundreds of stations were licensed to
    incumbent MDS licensees prior to implementation of Section 309(j) of
    the Communications Act of 1934, 47 U.S.C. § 309(j). For these
    pre-auction licenses, the applicable standard is SBA's small
    business size standard for "other telecommunications" (annual
    receipts of \$11 million or less). *See* 13 C.F.R. § 121.201.

[^303]: ^?^ *Id*. A BTA is the geographic area by which the MDS is
    licensed. *See* Rand McNally, *1992 Commercial Atlas and Marketing
    Guide*, 123rd Edition, pp. 36-39.

[^304]: ^?^ *See Local Multipoint Distribution Service, Second Report
    and Order*, 12 FCC Rcd 12545 (1997).

[^305]: ^?^ *Id*.

[^306]: ^?^ *See* Letter to Daniel Phythyon, Chief, Wireless
    Telecommunications Bureau, FCC, from A. Alvarez, Administrator, SBA
    (January 6, 1998).

[^307]: ^?^ 13 C.F.R. § 121.201, NAICS codes 513210 and 513220.

[^308]: ^?^ *Id*.

[^309]: ^?^ We base these estimates on a compilation performed by the
    Equal Employment Opportunity staff, Policy Division, Media Bureau,
    FCC.

[^310]: ^?^ At that time, we considered '"MVPDs" to be all multichannel
    video programming distributors that were not cable operators.

[^311]: ^?^ 5 U.S.C. § 603(c).

[^312]: ^?^ *Second NPRM*, para. 29, 48

[^313]: NAB Comments at 54-58.

[^314]: Association of Public Television Stations Comments at 8-9.

[^315]: LTVG Comments at 33.

[^316]: MMTC Comments at 97-100; NOW Comments at 22-27; AWRT Comments at
    17-18; NAACP Comments at 2-3; Lawyers' Committee for Civil Rights
    Under Law Comments at 5.

[^317]: ACA Comments and IRFA Comments.

[^318]: *Implementation of Sections of the Cable Television Consumer
    Protection and Competition Act of 1992: Rate Regulation*, 10 FCC Rcd
    7393 (1995).

[^319]: FH&H Comments.

[^320]: ^?^ *See* 5 U.S.C. § 603. The RFA, *see* 5 U.S.C. § 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").

[^321]: ^?^ *See* 5 U.S.C. § 603.

[^322]: ^?^ *See* *id.*

[^323]: ^?^ *See* discussion in *FRFA*, *supra*, at Appendix B, Section
    C.

[^324]: ^?^ 5 U.S.C. § 603(b)(3).

[^325]: ^?^ 5 U.S.C. § 601(6).

[^326]: ^?^ 5 U.S.C. § 601(3).

[^327]: 5 U.S.C. § 601(4).

[^328]: 1992 Economic Census, U.S. Bureau of the Census, Table 6
    (special tabulation of data under contract to Office of Advocacy of
    the U.S. Small Business Administration).

[^329]: 5 U.S.C. § 601(5).

[^330]: U.S. Dept. of Commerce, Bureau of the Census, "1992 Census of
    Governments."

[^331]: *Id.*

[^332]: ^?^ 13 C.F.R. § 121.104(d)(1).

[^333]: ^?^ 13 C.F.R. § 121.103(a)(1).

[^334]: ^?^ 13 C.F.R. § 121.103(a)(2).

[^335]: ^?^ While we believe that the SBA's definition of "small
    business" in this context greatly overstates the number of radio and
    television broadcast stations that are small businesses and is not
    suitable for purposes of determining the impact of the rules on
    small television and radio stations, for purposes of this IRFA, we
    include the SBA's definition in determining the number of small
    businesses to which the rules would apply.

[^336]: ^?^ 13 C.F.R. § 121.201, North American Industry Classification
    System (NAICS) code 513120.

[^337]: ^?^ Economics and Statistics Administration, Bureau of Census,
    U.S. Department of Commerce, 1992 Census of Transportation,
    Communications and Utilities, Establishment and Firm Size, Series
    UC92-S-1, Appendix A-9 (1995).

[^338]: ^?^ *Id.; see* Executive Office of the President, Office of
    Management and Budget, *Standard Industrial Classification Manual*,
    at NAICS code 513120.

[^339]: ^?^ 1992 Census, Series UC92-S-1, at Appendix A-9.

[^340]: ^?^ *Id*.; formerly SIC code 7812 (Motion Picture and Video Tape
    Production) (NAICS code 512110); formerly SIC code 7922 (Theatrical
    Producers and Miscellaneous Theatrical Services) (producers of live
    radio and television programs) (NAICS codes 512110, 512191, 512290).

[^341]: ^?^ FCC News Release, Broadcast Station Totals as of December
    31, 2001 (released May 21, 2002).

[^342]: ^?^ U.S. Census Bureau, 1997 Economic Census, Subject Series:
    Information, "Receipts Size of Firms Subject to Federal Income Tax:
    1997," Table 4, NAICS code 513120 (issued Oct. 2000).

[^343]: ^?^ *Id.* The census data do not provide a more precise
    estimate.

[^344]: ^?^ 13 C.F.R. § 121.201, NAICS codes 513111 and 513112.

[^345]: ^?^ 1992 Census, Series UC92-S-1, at Appendix A-9.

[^346]: ^?^ *Id.*

[^347]: ^?^ *Id*.

[^348]: ^?^ *Id*.

[^349]: ^?^ U.S. Census Bureau, 1997 Economic Census, Subject Series:
    Information, "Receipts Size of Firms Subject to Federal Income Tax:
    1997," Table 4, NAICS code 513220 (issued Oct. 2000).

[^350]: ^?^ *Id.* The census data do not provide a more precise
    estimate.

[^351]: ^?^ 13 C.F.R. § 121.201 (NAICS codes 513210 and 513220).

[^352]: ^?^ U.S. Census Bureau, 1997 Economic Census, Subject Series:
    Information, "Receipts Size of Firms Subject to Federal Income Tax:
    1997," Table 4, NAICS code 513220 (issued Oct. 2000).

[^353]: ^?^ *Id.* The census data do not provide a more precise
    estimate.

[^354]: ^?^ 47 C.F.R. § 67.901(3). The Commission developed this
    definition based on its determination that a small cable system
    operator is one with annual revenues of \$100 million or less.
    *Implementation of Sections of the 1992 Cable Act: Rate Regulation,
    Sixth Report and Order and Eleventh Order on Reconsideration*, 10
    FCC Rcd 6393 (1995).

[^355]: ^?^ Paul Kagan Associates, Inc., Cable TV Investor, Feb. 29,
    1996 (based on figures for Dec. 30, 1995).

[^356]: ^?^ 47 U.S.C. § 543(m)(2).

[^357]: ^?^ FCC Announces New Subscriber Count for the Definition of
    Small Cable Operator, Public Notice DA 01-158 (January 24, 2001).

[^358]: ^?^ 47 C.F.R. § 76.1403(b) (SIC 4833).

[^359]: ^?^ Paul Kagan Associates, Inc., Cable TV Investor, Feb. 29,
    1996 (based on figures for Dec. 30, 1995).

[^360]: ^?^ For purposes of this item, MDS includes the single channel
    Multipoint Distribution Service (MDS) and the Multichannel
    Multipoint Distribution Service (MMDS).

[^361]: ^?^ 47 C.F.R. § 1.2110(a)(1).

[^362]: ^?^ *See Amendment of Parts 21 and 74 of the Commission\'s Rules
    With Regard to Filing Procedures in the Multipoint Distribution
    Service and in the Instructional Television Fixed Service and
    Implementation of Section 309(j) of the Communications Act -
    Competitive Bidding,* MM Docket No. 94-131 and PP Docket No. 93-253,
    Report and Order, 10 FCC Rcd 9589 (1995).

[^363]: ^?^ 47 U.S.C. § 309(j). (Hundreds of stations were licensed to
    incumbent MDS licensees prior to implementation of Section 309(j) of
    the Communications Act of 1934, 47 U.S.C. § 309(j). For these
    pre-auction licenses, the applicable standard is SBA's small
    business size standard for "other telecommunications" (annual
    receipts of \$11 million or less). *See* 13 C.F.R. § 121.201.

[^364]: ^?^ *Id*. A BTA is the geographic area by which the MDS is
    licensed. *See* Rand McNally, *1992 Commercial Atlas and Marketing
    Guide*, 123rd Edition, pp. 36-39.

[^365]: ^?^ *See Local Multipoint Distribution Service, Second Report
    and Order*, 12 FCC Rcd 12545 (1997).

[^366]: ^?^ *Id*.

[^367]: ^?^ *See* Letter to Daniel Phythyon, Chief, Wireless
    Telecommunications Bureau, FCC, from A. Alvarez, Administrator, SBA
    (January 6, 1998).

[^368]: ^?^ 13 C.F.R. § 121.201, NAICS codes 513210 and 513220.

[^369]: ^?^ *Id*.

[^370]: ^?^ We base these estimates on a compilation performed by the
    Equal Employment Opportunity staff, Policy Division, Media Bureau,
    FCC.

[^371]: ^?^ At that time, we considered '"MVPDs" to be all multichannel
    video programming distributors that were not cable operators.

[^372]: ^?^ 5 U.S.C. § 603(c).

[^373]: *See also* *Report and Order*, 15 FCC Rcd 2329, 2360-61 (2000),
    *recon. denied*, 15 FCC Rcd 22548 (2000).

[^374]: *See Review of the Commission\'s Broadcast and Cable Equal
    Employment Opportunity Rules and Policies,* Second Notice of
    Proposed Rulemaking, 16 FCC Rcd 22843, 22858, ¶50 (2001).