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 Federal  Communications  Commission  FCC  02-  303 
 Before  the  Federal  Communications  Commission 
 Washington,  D.  C.  20554 
 In  the  Matter  of  )  ) 
 Review  of  the  Commissions  )  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 
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 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  Commissions  EEO  program  requirements  for  broadcasters  were  unconstitutional  in  Lutheran  Church-  Missouri  Synod  v.  FCC.  6 

 3.  In  Lutheran  Church,  the  court  focused  on  the  Commissions  processing  guidelines  disclosing  the  criteria  it  used  to  select  stations  for  in-  depth  EEO  review  when  their  licenses  came  up  for 

 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  rehg  denied,  154  F.  3d  487,  pet.  for  rehg  en  banc  denied,  154  F.  3d 
 494  (D.  C.  1998)  (  Lutheran  Church). 
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 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  governments  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  Courts  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  homo-genous 
 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  require-ment  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, 

 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. 
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 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  broadcasters  applicant  pools  may  be  one  indication  (and  only  one 
 indication)  that  the  stations  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  Commissions  pursuit  of  that  goal.  Second,  the  court  found  unsupported  the  claim  that, 

 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. 
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 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 

 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  Courts  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). 
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 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: 
 (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 

 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. 
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 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  stations  EEO  public  file  report  to  the  Commission  as  part  of  the  renewal  application  and  midway  through  the  license  term  for  the 
 Commissions  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. 
 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  units  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  units  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  units  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 

 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). 
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 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 
 A.  Statutory  Authority  for  EEO  Program  Requirements  and  Anti-  Discrimination  Rules 
 1.  EEO  Rules  Applicable  to  Multichannel  Video  Programming  Distributors 
 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  courts  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 

 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. 
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 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  courts  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 

 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 
 Commissions  authority  to  adopt  EEO  rules  for  all  broadcasters. 
 a.  Section  334:  Explicit  Authority  to  Regulate  EEO  Practices  of  Television  Broadcasters 
 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  Commissions  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 

 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  Commissions  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 
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 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  courts  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  Commissions  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 
 for  must-  carry  broadcast  stations,  it  simply  codified  the  FCCs  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. 
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 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  courts  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  Commissions  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  Commissions  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 

 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 

 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  statutes  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). 
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 with  a  stations  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 
 agencys  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  Commissions  authority  to  adopt  and  enforce  EEO  requirements  against  broadcasters  under  its  statutory  mandate  to  license  and  regulate  broadcasters  in  the  public  interest. 

 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  Commissions  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  licensees  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). 
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 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  Commissions  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  Commissions  authority  to  adopt  EEO  rules  need  not  be  inferred  solely  from  congressional  acquiescence  in  the  Commissions  exercise  of  that  authority  over  a 
 period  of  many  years.  Congress  has,  in  two  major  pieces  of  legislation,  expressly  approved  and  ratified  the  Commissions  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  Commissions  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 

 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  States  interpretation  of  Passport  Act  of  1926  as  authorizing  him 
 to  impose  area  restrictions  was  ratified  by  Congress  when  it  left  untouched  the  Secretarys  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. 
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 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  Commissions  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  Commissions  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  Commissions  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  Commissions  pre-  existing  regulatory  scheme,  which  it  viewed  as  well  within  the  Commissions  statutory 
 authority.  For  example,  the  House  Report  states  that  the  legislation  codifies  and  strengthens  the  Commissions  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  Commissions  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  Commissions  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  Commissions  EEO  program  and  nondiscrimination  requirements  as  applied  to  broadcast  television  licensees.  Moreover,  Congress 
 once  again  explicitly  acknowledged  the  existence  of  the  Commissions  broadcast  and  cable  EEO 

 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. 
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 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  Nations  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  Commissions  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  Commissions  EEO  requirements  for  broadcast  television  stations  in 
 Section  334  of  the  Act.  74  Section  334  thus  explicitly  recognizes  the  existence  of  the  Commissions  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  Commissions]  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  Commissions  lawful  authority.  77  Thus, 

 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  Commissions  EEO  rules  for  broadcasters  apply  to  radio  as  well  as  television  stations. 
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 Section  22(  g)  is  further  evidence  of  Congress  affirmative  approval  of  the  Commissions  authority  to  adopt  equal  employment  opportunity  requirements  for  broadcasters.  78 
 39.  It  is  within  this  historical  context  that  the  Commissions  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  Commissions  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 

 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  Commissions  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  Commissions  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  Commissions  decade-  old 
 policy  without  any  discussion  or  even  any  suggestion  that  it  was  doing  so.  Id.  at  67-  68.  In  the  case  of  the  Commissions  jurisdiction  to  regulate  in  the  EEO  area,  there  is  affirmative  evidence  of  congressional  approval  of  the 
 Commissions  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  agencys  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  States  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). 
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 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  Commissions  contention  that  Congress  has  ratified  the  Commissions  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  FCCs  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  Acts  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  Commissions  statutory  authority  under  the 
 Communications  Act  that  Congress  has  ratified  over  the  course  of  many  years. 
 43.  Once  Congress  ratified  the  Commissions  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,  Congresss  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 
 Commissions  authority  to  adopt  new  or  different  EEO  rules  have  no  merit.  88 

 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  62,  78-  81,  supra.  For  example,  in  Zemel  v.  Rusk,  381  U.  S.  1  (1965),  the 
 Supreme  Court  held  that  the  Secretary  of  States  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  Secretarys  authority  to 
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 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  Commissions  public  interest  mandate  and  whether  it  is  broad  enough  to  authorize  EEO  regulation,  it  has  now  been  resolved. 

 c.  Other  Authority. 
 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 

 impose  such  restrictions  in  1952  by  enacting  passport  legislation  without  tampering  with  the  rulemaking  authority  granted  to  the  Secretary  in  the  1926  Act.  The  Secretarys  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  courts  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. 
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 order  to  avoid  any  confusion  arising  from  the  language  in  the  courts  decision,  we  recodify  the  nondiscrimination  requirement.  Nondiscrimination  is  an  essential  component  of  every  licensees 
 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  licensees 
 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 

 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 
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 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  entitys  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 
 a.  Rules  and  Policies 
 i.  General  Considerations 

 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. 
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 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 

 104  See,  e.  g.,  StBAs  Comments  at  7. 
 105  StBAs  Comments  at  32. 
 106  NAB  Comments  at  4-  10. 
 107  StBAs  Comments  at  12. 
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 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 

 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. 
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 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  nations  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 

 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  AFTRAs  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. 
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 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 

 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. 
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 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 

 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). 
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 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 
 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.  NABs  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 

 130  Second  NPRM,    15,  16  FCC  Rcd  at  22847. 
 131  NAB  Comments  at  11-  14. 
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 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 

 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. 
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 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  NABs  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 
 Courts  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.  NABs  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  NABs  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  stations  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. 

 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. 
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 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  licensees  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 
 licensees  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. 

 142  NAB  Comments  at  46-  47. 
 143  Id.  at  47-  49. 
 144  Id.  at  49. 
 145  Id.  at  50. 
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 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  FCCs  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  broadcasters  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  stations  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  licensees  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  licensees  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 

 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. 
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 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.  MMTCs  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  stations  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  licensees  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 

 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. 
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 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  Commissions 
 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  licensees  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 
 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. 
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 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  industrys  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, 
 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). 
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 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  NTIAs  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. 

 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. 
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 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 

 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. 
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 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 

 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.) 
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 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  Commissions  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 

 181  LTVG  Comments  at  20-  22. 
 182  LTVG  Comments  at  20-  21. 
 183  LTVG  Comments  at  22. 
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 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  womens  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  LTVGs  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 
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 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 

 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. 
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 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  licensees 
 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  licensees  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  broadcasters  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  ones  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 

 187  Report  and  Order,    103,  15  FCC  Rcd  at  2373. 
 188  Recon,    56-  60,  15  FCC  Rcd  at  22564-  65. 
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 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  Commissions  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 

 189  LTVG  Comments  at  23-  27. 
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 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  broadcasters  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  broadcasters  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 

 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. 
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 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 
 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. 
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 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  jobseekers  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 

 200  StBAs  Comments  at  41-  42. 
 201  NCTA  Comments  at  15. 
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 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  stations  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  stations  web  site  is  unreasonable  or  overly  burdensome.  In  the  Recon,  we  denied  NABs  request  that  we  eliminate 

 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  stations 
 next  renewal  application,  all  reports  need  not  be  maintained  on  the  stations  web  site.  The  requirement  to  post  a  stations  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. 
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 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  stations  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  stations  community.  As  we  indicated  in  the  Recon,  the 
 purpose  of  the  requirement  is  to  facilitate  access  by  persons  within  the  stations  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 

 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. 
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 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  licensees  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  licensees  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  licensees  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 

 214  AWRT  Comments  at  15. 
 215  Report  and  Order,    108,  15  FCC  Rcd  at  2375. 
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 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  units  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  units  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  stations  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 

 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 
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 public  file  report  does  not  accurately  reflect  the  employment  units  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  Commissions  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  licensees  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, 

 the  report  placed  in  the  public  file  on  February  1,  2003. 
 220  Licensees  of  low  power  FM  (LPFM)  stations  are  subject  to  the  Commissions  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). 
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 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 

 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/. 

 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  . 

 227  The  EEO  staff  can  be  reached  at  (202)  418-  1450. 
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 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  licensees  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 

 228  StBAs  Comments  at  5. 
 229  MMTC  Comments  at  137. 
 230  Second  NPRM,    35,  16  FCC  Rcd  at  22854. 
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 of  the  renewal  application.  231  MMTC  has  no  objection  to  excluding  complaints  that  were  filed  and  subsequently  resolved  on  the  merits  in  the  broadcasters  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  licensees  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 

 231  StBAs  Comments  at  56; 
 232  MMTC  Comments  at  61  n.  165. 
 233  Report  and  Order,    126,  15  FCC  Rcd  at  2381. 
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 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 

 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. 
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 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  stations  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  owners  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 
 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. 
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 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  FHHs  petition  when  the  Courts  decision  in  Association  was  issued.  Accordingly,  we  asked  for  comments  on  FHHs  proposal  in  the  Second  NPRM.  246  It  renews 
 its  proposal  in  its  comments  filed  in  response  to  the  Second  NPRM. 
 173.  We  will  adopt  FHHs  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  owners  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  owners  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 
 a.  Rules  and  Policies 
 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. 

 246  Second  NPRM,    1,  16  FCC  Rcd  at  22843. 
 247  LTVG  Comments  at  32-  33. 
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 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  ACAs 
 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  entitys  EEO  outreach  program.  In  addition,  both  forms  request  information  as  to  the  gender  and  racial/  ethnic 
 composition  of  the  entitys  workforce,  analogous  to  the  broadcast  Form  395-  B.  As  in  the  broadcast  context,  the  data  concerning  the  entitys  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, 
 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. 
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 which  will  include  the  portions  of  Forms  395-  A  and  395-  M  relating  to  EEO  outreach,  but  not  the  portion  eliciting  data  concerning  the  entitys  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  FCCs  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 

 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  Childrens  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. 
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 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). 
 256  See  5  U.  S.  C.    603. 
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 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  Commissions  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 
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 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  Commissions  Rules,  47  C.  F.  R.    73.3612  (Annual  Employment  Report)  and 
 76.1802  of  the  Commissions  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. 
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 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 
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 APPENDIX  A  LIST  OF  COMMENTING  PARTIES 
 Comments 
 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  Americas  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.  Lawyers  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, 
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 San  Diego  Community  Broadcasting  School,  Inc.,  Telecommunications  Research  and  Action  Center,  UNITY:  Journalists  of  Color,  Inc.,  Womens 
 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.) 
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 Reply  Comments 
 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,  Womens  Institute  for  Freedom  of  the 
 Press) 
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 EEO  En  Banc  Hearing  Commenters 
 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 
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 APPENDIX  B 
 FINAL  REGULATORY  FLEXIBILITY  ANALYSIS 
 As  required  by  the  Regulatory  Flexibility  Act  (RFA),  1  an  Initial  Regulatory  Flexibility  Analysis  (IRFA)  was  incorporated  into  the  Second  Notice  of  Proposed  Rule  Making  (Second  NPRM)  in  this  proceeding.  2 
 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.  3 
 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  Commissions  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  ACAs  concerns  and,  as  discussed  below,  provides  relief  to  small 
 MVPD  employment  units.  4 

 1  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). 

 2  See  Review  of  the  Commission's  Broadcast  and  Cable  Equal  Employment  Opportunity  Rules  and  Policy, 
 16  FCC  Rcd  22843,  22862  (2001). 

 3  See  5  U.  S.  C.    604. 
 4  See  para.  177,  supra. 
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 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.  5  Generally,  no  special  skills  will  be 
 necessary  to  comply  with  the  requirements.  6 
 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  stations  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 

 5  Letter  from  Aida  Alvarez,  Administrator,  U.  S.  Small  Business  Administration,  to  Roy  Stewart,  Chief,  Mass 
 Media  Bureau,  Federal  Communications  Commission  (January  19,  2000). 
 6  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). 
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 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  stations  next  license  renewal  application,  and  cable  entities  retain  their  materials  for  a 
 period  of  five  years. 
 Most  broadcasters  must  submit  the  contents  of  their  stations  EEO  public  inspection  file  to  the  FCC  as  part  of  their  renewal  application  and  midway  through  the  license  term  for  the  Commissions  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.  7  Under  the  RFA,  small  entities  may  include  small  organizations,  small  businesses,  and  small  governmental  jurisdictions.  8  The  RFA,  5  U.  S.  C.    601(  3),  generally  defines  the  term  "small  business" 

 7  5  U.  S.  C.    603(  b)(  3). 
 8  5  U.  S.  C.    601(  6). 
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 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."  9 
 A  small  organization  is  generally  any  not-  for-  profit  enterprise  which  is  independently  owned  and  operated  and  is  not  dominant  in  its  field.  10  Nationwide,  as  of  1992,  there  were  approximately  275,801 
 small  organizations.  11  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.  12  As  of  1992,  there  were  approximately  85,006  such  jurisdictions  in  the  United  States.  13  This  number  includes  38,978  counties,  cities,  and  towns;  of  these,  37,566,  or  96  percent,  have  populations  of 
 fewer  than  50,000.  14  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 

 9  5  U.  S.  C.    601(  3). 
 10  5  U.  S.  C.    601(  4). 
 11  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). 
 12  5  U.  S.  C.    601(  5). 

 13  U.  S.  Dept.  of  Commerce,  Bureau  of  the  Census,  1992  Census  of  Governments. 
 14  Id. 
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 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.  15  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.  16  The  SBA 
 considers  factors  such  as  ownership,  management,  previous  relationships  with  or  ties  to  another  concern,  and  contractual  relationships,  in  determining  whether  affiliation  exists.  17  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.  18  The  SBA  defines  a  television  broadcasting  station  that  has  no  more  than  $12.0  million  in  annual 
 receipts  as  a  small  business.  19  Television  broadcasting  stations  consist  of  establishments  primarily  engaged  in  broadcasting  visual  programs  by  television  to  the  public,  except  cable  and  other  pay  television  services.  20 
 Included  in  this  industry  are  commercial,  religious,  educational,  and  other  television  stations.  21  Also  included  are  establishments  primarily  engaged  in  television  broadcasting  and  which  produce  taped  television 
 program  materials.  22  Separate  establishments  primarily  engaged  in  producing  taped  television  program  materials  are  classified  under  other  North  American  Industry  Classification  (NAICS)  numbers.  23 

 15  13  C.  F.  R.    121.104(  d)(  1). 
 16  13  C.  F.  R.    121.103(  a)(  1). 
 17  13  C.  F.  R.    121.103(  a)(  2). 
 18  While  we  believe  that  the  SBAs  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 

 SBAs  definition  in  determining  the  number  of  small  businesses  to  which  the  rules  would  apply. 
 19  13  C.  F.  R.    121.201,  North  American  Industry  Classification  System  (NAICS)  code  513120. 

 20  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). 

 21  Id.;  see  Executive  Office  of  the  President,  Office  of  Management  and  Budget,  Standard  Industrial 
 Classification  Manual,  at  NAICS  code  513120. 
 22  1992  Census,  Series  UC92-  S-  1,  at  Appendix  A-  9. 

 23  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). 
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 There  were  1,695  full-  service  television  stations  operating  as  of  December  2001.  24  According  to  Census  Bureau  data  for  1997,  there  were  906  Television  Broadcasting  firms,  total,  that  operated  for  the  entire 
 year.  25  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.  26  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.  27  A  radio  broadcasting  station  is  an  establishment  primarily  engaged  in  broadcasting  aural 

 programs  by  radio  to  the  public.  28  Included  in  this  industry  are  commercial,  religious,  educational,  and  other  radio  stations.  29  Radio  broadcasting  stations  which  primarily  are  engaged  in  radio  broadcasting  and  which 
 produce  radio  program  materials  are  similarly  included.  30  However,  radio  stations  which  are  separate  establishments  and  are  primarily  engaged  in  producing  radio  program  material  are  classified  under  another 
 NAICS  number.  31  According  to  Census  Bureau  data  for  1997,  there  were  4,476  Radio  Stations  (firms),  total,  that  operated  for  the  entire  year.  32  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.  33  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.  34  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.  35  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.  36  Thus,  under  this  standard,  the  majority  of  firms  can  be  considered  small.  Below  we 

 24  FCC  News  Release,  Broadcast  Station  Totals  as  of  December  31,  2001  (released  May  21,  2002). 
 25  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). 
 26  Id.  The  census  data  do  not  provide  a  more  precise  estimate. 

 27  13  C.  F.  R.    121.201,  NAICS  codes  513111  and  513112. 
 28  1992  Census,  Series  UC92-  S-  1,  at  Appendix  A-  9. 
 29  Id. 
 30  Id. 
 31  Id. 
 32  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). 
 33  Id.  The  census  data  do  not  provide  a  more  precise  estimate. 

 34  13  C.  F.  R.    121.201  (NAICS  codes  513210  and  513220). 
 35  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). 
 36  Id.  The  census  data  do  not  provide  a  more  precise  estimate. 
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 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.  37  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.  38  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."  39  The  Commission  has  determined  that  there  are  67,700,000  subscribers  in  the 
 United  States.  40  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.  41  Based  on  available  data,  we  find  that  the  number  of  cable  operators  serving  677,000  subscribers  or  less  totals  approximately  1,450.  42  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.  43  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.  44  This  definition  of  a  small  entity  in  the  context  of  MDS  auctions  has  been 
 approved  by  the  SBA.  45  These  stations  were  licensed  prior  to  implementation  of  Section  309(  j)  of  the 
 37  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). 
 38  Paul  Kagan  Associates,  Inc.,  Cable  TV  Investor,  Feb.  29,  1996  (based  on  figures  for  Dec.  30,  1995). 

 39  47  U.  S.  C.    543(  m)(  2). 
 40  FCC  Announces  New  Subscriber  Count  for  the  Definition  of  Small  Cable  Operator,  Public  Notice  DA 
 01-  158  (January  24,  2001). 
 41  47  C.  F.  R.    76.1403(  b)  (SIC  4833). 

 42  Paul  Kagan  Associates,  Inc.,  Cable  TV  Investor,  Feb.  29,  1996  (based  on  figures  for  Dec.  30,  1995). 
 43  For  purposes  of  this  item,  MDS  includes  the  single  channel  Multipoint  Distribution  Service  (MDS) 
 and  the  Multichannel  Multipoint  Distribution  Service  (MMDS). 
 44  47  C.  F.  R.    1.2110(  a)(  1). 

 45  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, 
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 Communications  Act  of  1934,  as  amended.  46  Licenses  for  new  MDS  facilities  are  now  awarded  to  auction  winners  in  Basic  Trading  Areas  (BTAs)  and  BTA-  like  areas.  47  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.  48  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.  49  These  regulations  defining  small  entity  in  the  context  of  LMDS  auctions  have  been  approved  by  the  SBA.  50  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  Commissions  auction  rules. 

 DBS:  Because  DBS  provides  subscription  services,  it  falls  within  the  SBA-  recognized  definition  of  Cable  and  Other  Program  Distribution.  51  This  definition  provides  that  a  small  entity  is  one  with  $12.5 
 million  or  less  in  annual  receipts.  52  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.  53  Similarly,  we  estimate  that  in  1997,  1900  cable  employment  units  employed  fewer  than  six  full-  time  employees.  Also,  in  1997,  296  MVPD  employment  units 

 Report  and  Order,  10  FCC  Rcd  9589  (1995). 
 46  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  SBAs  small  business  size  standard  for  other  telecommunications  (annual 

 receipts  of  $11  million  or  less).  See  13  C.  F.  R.    121.201. 
 47  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. 
 48  See  Local  Multipoint  Distribution  Service,  Second  Report  and  Order,  12  FCC  Rcd  12545  (1997). 

 49  Id. 
 50  See  Letter  to  Daniel  Phythyon,  Chief,  Wireless  Telecommunications  Bureau,  FCC,  from  A.  Alvarez, 
 Administrator,  SBA  (January  6,  1998). 
 51  13  C.  F.  R.    121.201,  NAICS  codes  513210  and  513220. 

 52  Id. 
 53  We  base  these  estimates  on  a  compilation  performed  by  the  Equal  Employment  Opportunity  staff,  Policy 
 Division,  Media  Bureau,  FCC. 
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 employed  fewer  than  six  full-  time  employees.  54  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.  55 

 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  Rules  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.  56  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) 

 54  At  that  time,  we  considered    MVPDs  to  be  all  multichannel  video  programming  distributors  that 
 were  not  cable  operators. 
 55  5  U.  S.  C.    603(  c). 

 56  Second  NPRM,  para.  29,  48 
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 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.  57  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.  58  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.  59  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.  60 

 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.  61  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.  62 

 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.  63 

 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 

 57  NAB  Comments  at  54-  58. 
 58  Association  of  Public  Television  Stations  Comments  at  8-  9. 
 59  LTVG  Comments  at  33. 
 60  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. 
 61  ACA  Comments  and  IRFA  Comments. 

 62  Implementation  of  Sections  of  the  Cable  Television  Consumer  Protection  and  Competition  Act  of  1992: 
 Rate  Regulation,  10  FCC  Rcd  7393  (1995). 
 63  FH&  H  Comments. 
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 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  Rules  requirements  is  monitored  pursuant  to  annual  reports  filed  by  MVPDs  which  must  be  placed  in  an  entitys  public  file.  The  Form  396-  C  requires  information  concerning  the  entitys  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:  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). 
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 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 
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 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. 
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 (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  stations  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; 
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 (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  licensees  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  stations  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  stations  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  licensees 
 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 
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 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  stations  Form  397  or  the  contents  of  a  stations  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  Commissions  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; 
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 (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; 
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 (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  units  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  units  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  units  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  units  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  units  public  file. 
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 (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  units  public  inspection  file  annually  by  the  date  that  the  units  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  units  public  file,  and  on  the  units  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),  1  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.  2  In  addition,  the  Third  Notice  and  IRFA  (or  summaries  thereof)  will  be  published  in  the  Federal  Register.  3 

 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  Commissions  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.  4 

 1  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). 

 2  See  5  U.  S.  C.    603. 
 3  See  id. 
 4  See  discussion  in  FRFA,  supra,  at  Appendix  B,  Section  C. 
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 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.  5  Under  the  RFA,  small  entities  may  include  small  organizations,  small  businesses,  and  small  governmental  jurisdictions.  6  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."  7 
 A  small  organization  is  generally  any  not-  for-  profit  enterprise  which  is  independently  owned  and  operated  and  is  not  dominant  in  its  field.  8  Nationwide,  as  of  1992,  there  were  approximately  275,801 
 small  organizations.  9  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.  10  As  of  1992,  there  were  approximately  85,006  such  jurisdictions  in  the  United  States.  11  This  number  includes  38,978  counties,  cities,  and  towns;  of  these,  37,566,  or  96  percent,  have  populations  of 
 fewer  than  50,000.  12  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 

 5  5  U.  S.  C.    603(  b)(  3). 
 6  5  U.  S.  C.    601(  6). 
 7  5  U.  S.  C.    601(  3). 
 8  5  U.  S.  C.    601(  4). 
 9  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). 
 10  5  U.  S.  C.    601(  5). 

 11  U.  S.  Dept.  of  Commerce,  Bureau  of  the  Census,  1992  Census  of  Governments. 
 12  Id. 
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 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.  13  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.  14  The  SBA 
 considers  factors  such  as  ownership,  management,  previous  relationships  with  or  ties  to  another  concern,  and  contractual  relationships,  in  determining  whether  affiliation  exists.  15  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.  16  The  SBA  defines  a  television  broadcasting  station  that  has  no  more  than  $12.0  million  in  annual  receipts  as  a  small  business.  17  Television 
 broadcasting  stations  consist  of  establishments  primarily  engaged  in  broadcasting  visual  programs  by  television  to  the  public,  except  cable  and  other  pay  television  services.  18  Included  in  this  industry  are 

 13  13  C.  F.  R.    121.104(  d)(  1). 
 14  13  C.  F.  R.    121.103(  a)(  1). 
 15  13  C.  F.  R.    121.103(  a)(  2). 
 16  While  we  believe  that  the  SBAs  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 

 SBAs  definition  in  determining  the  number  of  small  businesses  to  which  the  rules  would  apply. 
 17  13  C.  F.  R.    121.201,  North  American  Industry  Classification  System  (NAICS)  code  513120. 

 18  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). 
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 commercial,  religious,  educational,  and  other  television  stations.  19  Also  included  are  establishments  primarily  engaged  in  television  broadcasting  and  which  produce  taped  television  program  materials.  20 
 Separate  establishments  primarily  engaged  in  producing  taped  television  program  materials  are  classified  under  other  North  American  Industry  Classification  (NAICS)  numbers.  21 

 There  were  1,695  full-  service  television  stations  operating  in  the  as  of  December  2001.  22  According  to  Census  Bureau  data  for  1997,  there  were  906  Television  Broadcasting  firms,  total,  that  operated  for  the 
 entire  year.  23  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.  24  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.  25  A  radio  broadcasting  station  is  an  establishment  primarily  engaged  in  broadcasting  aural 

 programs  by  radio  to  the  public.  26  Included  in  this  industry  are  commercial,  religious,  educational,  and  other  radio  stations.  27  Radio  broadcasting  stations  which  primarily  are  engaged  in  radio  broadcasting  and  which 
 produce  radio  program  materials  are  similarly  included.  28  However,  radio  stations  which  are  separate  establishments  and  are  primarily  engaged  in  producing  radio  program  material  are  classified  under  another 
 NAICS  number.  29  According  to  Census  Bureau  data  for  1997,  there  were  4,476  Radio  Stations  (firms),  total,  that  operated  for  the  entire  year.  30  Of  this  total  4,265  had  annual  receipts  of  $4,999,999.00  or  less, 

 19  Id.;  see  Executive  Office  of  the  President,  Office  of  Management  and  Budget,  Standard  Industrial 
 Classification  Manual,  at  NAICS  code  513120. 
 20  1992  Census,  Series  UC92-  S-  1,  at  Appendix  A-  9. 

 21  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). 

 22  FCC  News  Release,  Broadcast  Station  Totals  as  of  December  31,  2001  (released  May  21,  2002). 
 23  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). 
 24  Id.  The  census  data  do  not  provide  a  more  precise  estimate. 

 25  13  C.  F.  R.    121.201,  NAICS  codes  513111  and  513112. 
 26  1992  Census,  Series  UC92-  S-  1,  at  Appendix  A-  9. 
 27  Id. 
 28  Id. 
 29  Id. 
 30  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). 
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 and  an  additional  103  firms  had  receipts  of  $5  million  to  $9,999,999.00.  31  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.  32  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.  33  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.  34  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.  35  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.  36  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."  37  The  Commission  has  determined  that  there  are  67,700,000  subscribers  in  the 
 United  States.  38  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.  39  Based  on  available  data,  we  find  that  the  number  of 

 31  Id.  The  census  data  do  not  provide  a  more  precise  estimate. 
 32  13  C.  F.  R.    121.201  (NAICS  codes  513210  and  513220). 
 33  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). 
 34  Id.  The  census  data  do  not  provide  a  more  precise  estimate. 

 35  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). 
 36  Paul  Kagan  Associates,  Inc.,  Cable  TV  Investor,  Feb.  29,  1996  (based  on  figures  for  Dec.  30,  1995). 

 37  47  U.  S.  C.    543(  m)(  2). 
 38  FCC  Announces  New  Subscriber  Count  for  the  Definition  of  Small  Cable  Operator,  Public  Notice  DA 
 01-  158  (January  24,  2001). 
 39  47  C.  F.  R.    76.1403(  b)  (SIC  4833). 
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 cable  operators  serving  677,000  subscribers  or  less  totals  approximately  1,450.  40  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.  41  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.  42  This  definition  of  a  small  entity  in  the  context  of  MDS  auctions  has  been 
 approved  by  the  SBA.  43  These  stations  were  licensed  prior  to  implementation  of  Section  309(  j)  of  the  Communications  Act  of  1934,  as  amended.  44  Licenses  for  new  MDS  facilities  are  now  awarded  to  auction 
 winners  in  Basic  Trading  Areas  (BTAs)  and  BTA-  like  areas.  45  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.  46  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.  47  These  regulations  defining  small  entity  in  the  context  of  LMDS  auctions  have  been  approved  by  the  SBA.  48  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 

 40  Paul  Kagan  Associates,  Inc.,  Cable  TV  Investor,  Feb.  29,  1996  (based  on  figures  for  Dec.  30,  1995). 
 41  For  purposes  of  this  item,  MDS  includes  the  single  channel  Multipoint  Distribution  Service  (MDS) 
 and  the  Multichannel  Multipoint  Distribution  Service  (MMDS). 
 42  47  C.  F.  R.    1.2110(  a)(  1). 

 43  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). 
 44  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  SBAs  small  business  size  standard  for  other  telecommunications  (annual 

 receipts  of  $11  million  or  less).  See  13  C.  F.  R.    121.201. 
 45  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. 
 46  See  Local  Multipoint  Distribution  Service,  Second  Report  and  Order,  12  FCC  Rcd  12545  (1997). 

 47  Id. 
 48  See  Letter  to  Daniel  Phythyon,  Chief,  Wireless  Telecommunications  Bureau,  FCC,  from  A.  Alvarez, 
 Administrator,  SBA  (January  6,  1998). 
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 and  the  40  winning  bidders  in  the  reauction,  for  a  total  of  133  small  entity  LMDS  providers  as  defined  by  the  SBA  and  the  Commissions  auction  rules. 
 DBS:  Because  DBS  provides  subscription  services,  it  falls  within  the  SBA-  recognized  definition  of  Cable  and  Other  Program  Distribution.  49  This  definition  provides  that  a  small  entity  is  one  with  $12.5 
 million  or  less  in  annual  receipts.  50  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.  51  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.  52  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.  53 

 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, 

 49  13  C.  F.  R.    121.201,  NAICS  codes  513210  and  513220. 
 50  Id. 
 51  We  base  these  estimates  on  a  compilation  performed  by  the  Equal  Employment  Opportunity  staff,  Policy 
 Division,  Media  Bureau,  FCC. 
 52  At  that  time,  we  considered    MVPDs  to  be  all  multichannel  video  programming  distributors  that 
 were  not  cable  operators. 
 53  5  U.  S.  C.    603(  c). 
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 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.  54 

 54  See  also  Report  and  Order,  15  FCC  Rcd  2329,  2360-  61  (2000),  recon.  denied,  15  FCC  Rcd  22548 
 (2000). 
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 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  .  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). 
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 SEPARATE  STATEMENT  OF  COMMISSIONER  KATHLEEN  Q.  ABERNATHY 
 Re:  Review  of  the  Commissions  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. 
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 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.  1  We  therefore  will  address  the  collection  of  this  information  in  a  future  proceeding. 

 1  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). 
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 SEPARATE  STATEMENT  OF  COMMISSIONER  MICHAEL  J.  COPPS 
 In  the  Matter  of  Review  of  the  Commissions  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 
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 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 
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 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  weve  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. 

 Ive  heard  the  bad  news  personally  in  my  conversations  with  many  minority  and 
 womens  groups.  African  American  broadcasters  tell  me  that,  even  though  some  of  them  have 
 done  pretty  well  in  this  industry,  they  didnt  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 
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 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.  Ill  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  dont  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  Ive  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 
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 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  todays  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  Americas  progress  we  are  one  day  afforded  the  opportunity  to  be 
 even  more  active,  I  hope  we  will  seize  that  day,  too. 
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