7448 Federal Register / Vol. 65, No. 31 / Tuesday, February 15, 2000 / Rules and Regulations

Source of flooding and location

#Depth in

feet above

ground.

*Elevation

in feet

(NGVD)

At the upstream side of

Lamoille Valley Railroad ...... *677

Approximately 625 feet upstream of a private drive

(approximately 225 feet

downstream of upstream

corporate limits) ................... *927

Maps available for inspection

at the Wolcott Town Hall, 4186

Vermont Route 15, Wolcott,

Vermont.

WEST VIRGINIA

Logan County (Unincorporated Areas) (FEMA

Docket NO. 7299)

Mud Fork:

At the confluence with

Copperas Mine Fork ............ *676

Approximately 1,960 feet upstream from CSX Railroad ... *676

Copperas Mine Fork:

At the confluence with Island

Creek .................................... *676

Approximately 1,070 feet

downstream from County

Route 9 and County Route 4 *676

Island Creek:

Approximately 140 feet upstream of confluence of

Guyandotte River ................. *661

Approximately 1,425 feet upstream of confluence of Cow

Creek .................................... *850

Maps available for inspection

at the 911 EOC Building,

Flood Zoning Office, 281⁄2

Main Avenue, Logan, West

Virginia.

———

Morgan County (Unincorporated Areas) (FEMA

Docket No. 7299)

Cacapon River:

Approximately 200 feet upstream of the confluence

with the Potomac River ........ *454

Approximately 1,405 feet upstream of the most upstream

crossing of State Route 9 .... *584

Maps available for inspection

at the Morgan County Courthouse, 202 Fairfax Street,

Berkeley Springs, West Virginia.

WISCONSIN

Crawford County (Unincorporated Areas) (FEMA

Docket No. 7295)

Wisconsin River:

At confluence with the Mississippi River ........................ *628

Approximately 1.88 miles upstream of confluence with

Richland Creek .................... *662

Source of flooding and location

#Depth in

feet above

ground.

*Elevation

in feet

(NGVD)

Mississippi River:

Approximately 4 miles downstream of U.S. Highway 18 .. *628

Approximately 0.7 mile downstream of U.S. Highway 18 .. *629

Maps available for inspection

at the Crawford County Zoning

Department, 111 West Dunn

Street, Prairie Du Chien, Wisconsin.

———

Fond du Lac County (Unincorporated Areas) (FEMA

Docket No. 7291)

Sevenmile Creek:

Approximately 845 feet upstream of the confluence

with East Branch Fond du

Lac River .............................. *839

Upstream side of County

Route Y ................................ *879

De Neveu Creek:

Approximately 1,380 feet

downstream of U.S. Highway 45 .................................. *810

Approximately 1,900 feet upstream of confluence of

Unnamed Tributary to De

Neveu Creek ........................ *826

Unnamed Tributary to Unnamed

Tributary to De Neveu Creek:

At confluence with Unnamed

Tributary to De Neveu Creek *826

At outlet of Lake De Neveu ..... *824

Lake De Neveu:

Entire shoreline within county *864

Kettle Moraine Lake:

Entire shoreline within county *1,025

Unnamed Tributary to De Neveu

Creek:

At confluence with De Neveu

Creek .................................... *822

Just upstream of County Route

UU ........................................ *957

Maps available for inspection

at the Code Enforcement Office, 160 South Macy Street,

Fond du Lac, Wisconsin.

(Catalog of Federal Domestic Assistance No.

83.100, ‘‘Flood Insurance.’’)

Dated: January 31, 2000.

Michael J. Armstrong,

Associate Director for Mitigation.

[FR Doc. 00–3521 Filed 2–14–00; 8:45 am]

BILLING CODE 6718–04–P

FEDERAL COMMUNICATIONS

COMMISSION

47 CFR PARTS 0, 73 AND 76

[MM Docket Nos. 98–204 and 96–16, FCC

00–20]

Revision of Broadcast and Cable EEO

Rules and Policies

AGENCY: Federal Communications

Commission.

ACTION: Final rule.

SUMMARY: This document adopts new

broadcast Equal Employment

Opportunity (EEO) rules and policies

and amends its cable EEO rules and

policies. The document retains the

existing ban on discrimination and

promulgates recruitment-oriented

outreach rules. The EEO rules make

clear that broadcasting and cable

entities are not required to employ a

staff that reflects the racial or other

composition of the community or to use

racial preferences in hiring. The

intended effect is to adopt effective EEO

rules for the broadcasting and cable

industries.

DATES: Effective April 17, 2000, except

for the amendments to §§ 73.2080;

73.3526; 73.3527; 76.75; 76.77; 76.79;

76.1702; and 76.1802, which contain

information collection requirements that

have not been approved by the Office of

Management and Budget (OMB). The

FCC will publish a document in the

Federal Register announcing the

effective date of those amendments.

FOR FURTHER INFORMATION CONTACT: Roy

Boyce or Hope Cooper, Mass Media

Bureau, EEO Staff. (202) 418–1450. For

additional information concerning the

information collections, contact Judy

Boley, Federal Communications

Commission, Room 1–C804, 445 12th

Street, SW, Washington, DC 20554, or

via the Internet to jboley@fcc.gov.

SUPPLEMENTARY INFORMATION: This is a

synopsis of the Commission’s Report

and Order in MM Docket Nos. 98–204

and 96–16, adopted January 20, 2000,

and released February 2, 2000. The

complete text of this Report and Order

is available for inspection and copying

during normal business hours in the

FCC Reference Information, Courtyard

Level, 445 12th Street, SW, Washington,

DC, and also may be purchased from the

Commission’s copy contractor,

International Transcription Services,

Inc., at 202–857–3800, CY–B400, 445

12th St., SW, Washington, DC.

Synopsis of Report and Order

As proposed in the Notice of

Proposed Rule Making (NPRM) in this

Federal Register / Vol. 65, No. 31 / Tuesday, February 15, 2000 / Rules and Regulations 7449

proceeding, 63 FR 66104, December 2,

1998, the Report and Order adopts new

broadcast and cable EEO rules and

policies consistent with the D.C.

Circuit’s decision in Lutheran Church—

Missouri Synod v. FCC, 141 F.3d 344

(D.C. Cir. 1998) (Lutheran Church),

rehearing denied, September 15, 1998.

In Lutheran Church, the D.C. Circuit

held that the Commission’s broadcast

EEO program requirements were

unconstitutional because the court

concluded that they pressured stations

to maintain a workforce reflecting the

racial composition of their

communities. The court also remanded

the case back to the Commission to

determine whether it had the authority

to continue its ban on employment

discrimination.

As described in the Report and Order,

the Commission adopts new broadcast

and cable EEO rules that require nondiscrimination and outreach in

employment. None of the rules creates

an incentive to hire on the basis of race

or gender. In fact, the proposed rules

remove all references to any comparison

to minority and female labor force

statistics, including sections concerning

evaluation of employment profile and

job turnover.

In order to ensure fundamental

fairness, the EEO rules include broad

and inclusive outreach requirements

designed to ensure that all qualified

applicants have the opportunity to

compete for jobs in the broadcast and

cable industries on an equal basis.

Accordingly, the rules require that a

broadcaster or cable entity recruit for its

vacancies using recruitment sources

sufficient in its judgment to reach all

segments of its community. However, to

enhance the success of their outreach,

broadcasters and cable entities are also

required to implement two

supplemental recruitment measures: (1)

notification of job vacancies to any

recruitment organization that requests

such notification; and (2) outreach

efforts such as job fairs, internship

programs, training programs,

scholarship programs, mentoring

programs, and participation in

educational and community activities

relating to broadcast employment.

Broadcasters and cable entities may

choose not to engage in the

supplemental recruitment measures as

long as they maintain records on the

recruitment sources, race, ethnicity and

gender of applicants in order to monitor

the success of their outreach efforts.

However, entities choosing this

alternative recruitment option remain

subject to the core requirement that

information about job vacancies be

widely disseminated.

In order to provide guidance to

entities, the rules also clearly describe

what records of EEO efforts must be

kept by broadcasters and cable entities,

including the records to be placed in the

public file. The Report and Order

requires broadcasters and cable entities

to file annually an EEO report in their

public file, detailing their outreach

efforts during the preceding year and

the results of those efforts. Broadcasters

must also file a Statement of

Compliance every second, fourth and

sixth year of the license term certifying

compliance with the EEO Rule.

Television stations and every radio

station that is part of an employment

unit with more than ten full-time

employees will be required to file a

copy of their EEO public file report

midway through the license term.

Stations will also be required to file

their EEO public file report with their

renewal application and cable entities

will be required to file their EEO public

report as part of the supplemental

information required by statute to be

filed every five years.

Along with reinstating other broadcast

EEO Forms, the Report and Order

reinstates the preexisting EEO

requirement that broadcast station

employment units with five or more

full-time employees file an Annual

Employment Report, but with the

understanding that the Report’s data

will only be used to monitor industry

employment trends and furnish reports

to Congress.

The Report and Order retains the

Commission’s prohibition against

employment discrimination and details

the Commission’s statutory authority to

promulgate an employment nondiscrimination rule as well as EEO

program requirements. Specifically, the

Report and Order outlines the

Commission’s conclusion that Congress

has ratified the Commission’s authority

to adopt broadcast EEO rules; that equal

employment of minorities and women

furthers the Commission’s public

interest goal of diversity of

programming; and that the statutory

goal of fostering minority and female

ownership in the provision of

commercial spectrum-based services, as

directed by section 309(j) of the

Communications Act, is furthered by

EEO requirements. With respect to

broadcasters, the Report and Order

clarifies the anti-discrimination

prohibition so that religious radio and

television broadcasters may establish

religious belief or affiliation as a

qualification for all station employees.

The Report and Order notes the

Commission’s intent to limit undue

administrative burdens on broadcasters

and cable entities generally, and

particularly on those licensees of

smaller stations and similarly situated

cable entities, consistent with

maintaining an effective EEO program.

Specifically, the Report and Order

exempts broadcast station employment

units with fewer than five full-time

employees from the FCC’s specific EEO

requirements, as well as providing

additional relief for employment units

that have between five and ten full-time

employees. Cable employment units

with six to ten full-time employees are

also provided some relief from the

Report and Order’s specific EEO

program requirements, and cable

employment units with fewer than six

full-time employees are not required to

demonstrate compliance with the EEO

program requirements.

The Report and Order also terminates

the Commission’s EEO streamlining

proceeding in MM Docket No. 96–16, 63

FR 11376, March 9, 1998.

Paperwork Reduction Act of 1995

Analysis

The actions contained in this Report

and Order have been duly analyzed

with respect to the Paperwork

Reduction Act of 1995 and found to

impose a new reporting requirement or

burden on the public. Implementation

of this new reporting requirement will

be subject to approval by the Office of

Management and Budget, as prescribed

by the Act. The new paperwork

requirement contained in the Report

and Order is effective April 17, 2000,

upon OMB approval.

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 into the Notice

of Proposed Rule Making (NPRM) in

this proceeding. 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. This Final

Regulatory Flexibility Analysis (FRFA)

conforms to the RFA, as amended by the

Contract with America Advancement

Act of 1996 (CWAAA), Public Law 104–

121, 110 Stat. 847 (1996). (Title II of the

CWAAA is the Small Business

Regulatory Enforcement Fairness Act of

1996 (SBREFA)).

A. Need for and Objectives of the Rules

The D.C. Circuit court in Lutheran

Church held that the EEO program

requirements of the Commission’s EEO

Rule for broadcasters were

unconstitutional and remanded to the

7450 Federal Register / Vol. 65, No. 31 / Tuesday, February 15, 2000 / Rules and Regulations

Commission to determine whether we

have authority to enforce an

employment nondiscrimination

requirement. The Report and Order

adopts new EEO rules and policies for

broadcasters and cable entities,

including multichannel video

programming distributors (MVPDs),

consistent with the Lutheran Church

decision. The new EEO rules retain the

FCC’s anti-discrimination provisions

and prohibit broadcasters and cable

entities from engaging in discriminatory

practices. In addition, the rules require

broadcasters and cable entities to

establish and maintain an EEO program

designed to provide equal opportunity

for everyone, including minorities and

women. The new rules emphasize

inclusive recruitment outreach and

prohibit entities from preferring

members of any racial, national origin,

or gender group in hiring. We note that

SBA has approved our approach for

small stations and small cable entities in

this Report and Order. Letter from Aida

Alvarez, Administrator, U.S. Small

Business Administration, to Roy

Stewart, Chief, Mass Media Bureau,

Federal Communications Commission

(January 19, 2000).

B. Summary of Significant Issues Raised

by the Public Comments in Response to

the IRFA

Three comments were filed

specifically in response to the IRFA. See

Comments of Small Cable Business

Association (SCBA), U.S. Small

Business Administration (SBA), and

Congressmen Michael G. Oxley and

Ralph M. Hall (Oxley/Hall). SCBA states

that EEO recruiting, recordkeeping and

reporting requirements substantially

impact small cable systems since they

have limited financial and

administrative resources. It urges the

Commission to consider its comments

regarding small cable entities filed in

response to the NPRM. For the purpose

of providing EEO relief to small cable

operators, SCBA believes that a small

cable company should be defined by its

number of employees, and not its

amount of gross revenues, as currently

defined by the SBA. It states that a cable

system’s gross revenues or number of

subscribers does not correspond well to

EEO rules. We note that the Report and

Order considers SCBA’s concerns and

provides relief to small cable

employment units on the basis of unit

staff size, and by streamlining reporting

and recordkeeping requirements for all

cable entities.

The SBA urges the FCC to look at the

economic impact of its proposed EEO

requirements on small stations

consistent with the RFA, and if

necessary, to maintain its EEO

exemptions for small stations defined as

those with fewer than five employees.

We note that this FRFA conforms to the

RFA, and that the Report and Order

continues to exempt broadcast station

employment units with fewer than five

full-time employees from the FCC’s

specific EEO requirements, as well as

providing additional relief for

employment units that have between

five and ten full-time employees.

C. Description and Estimate of the

Number of Small Entities to Which the

Rules Would Apply

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 proposed rules. 5 U.S.C. 604(a)(3).

Under the RFA, small entities may

include small organizations, small

businesses, and small governmental

jurisdictions. 5 U.S.C. 601(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 4

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.’’ (While we stated in the

NPRM that we tentatively believe that

the SBA’s definition of ‘‘small business’’

in this context greatly overstates the

number of radio and television

broadcast stations that are small

businesses and is not suitable for

purposes of determining the impact of

the proposals on small television and

radio stations, for purposes of this

FRFA, we include the SBA’s definition

in determining the number of small

businesses to which the rules would

apply.) The rules we adopt in this

Report and Order will affect broadcast

stations and cable entities, including

MVPDs.

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. 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.

Last, with respect to applying SBA size

standards revenue caps, the SBA has

defined ‘‘annual receipts’’ specifically

in 13 CFR 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 those data may not correspond

completely with the SBA definition of

annual receipts.

Television and Radio Stations: The

rules in this Report and Order will

apply to television and radio stations.

The Small Business Administration

defines a television broadcasting station

that has no more than $10.5 million in

annual receipts as a small business. 13

CFR 121.201, Standard Industrial Code

(SIC) 4833. Television broadcasting

stations consist of establishments

primarily engaged in broadcasting

visual programs by television to the

public, except cable and other pay

television services. 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).

Included in this industry are

commercial, religious, educational, and

other television stations. Also included

are establishments primarily engaged in

television broadcasting and which

produce taped television program

materials. Id.

There were 1,509 full-service

television stations operating in the

nation in 1992. FCC News Release No.

31327, Jan. 13, 1993; Economics and

Statistics Administration, Bureau of

Census, U.S. Department of Commerce,

Appendix A–9. That number has

remained fairly constant as indicated by

the approximately 1,616 operating fullservice television broadcasting stations

in the nation as of September 1999. FCC

News Release, Broadcast Station Totals

as of September 30, 1999 (released

November 22, 1999). For 1992, the

Federal Register / Vol. 65, No. 31 / Tuesday, February 15, 2000 / Rules and Regulations 7451

number of television stations that

produced less than $10.0 million in

revenue was 1,155 establishments.

(Census for Communications’

establishments are performed every five

years ending with a ‘‘2’’ or ‘‘7’’. See

Economics and Statistics

Administration, Bureau of Census, U.S.

Department of Commerce, note 53, III.

The amount of $10 million was used to

estimate the number of small business

establishments because the relevant

Census categories stopped at $9,999,999

and began at $10,000,000. No category

for $10.5 million existed. Thus, the

number is as accurate as it is possible

to calculate with the available

information.) Thus, the rules will affect

approximately 1,616 television stations;

approximately 77%, or 1,244 of those

stations are considered small

businesses. We use the 77 percent figure

of TV stations operating at less than $10

million for 1992 and apply it to the 1999

total of 1,616 TV stations to arrive at

stations categorized as small businesses.

These estimates may overstate the

number of small entities since the

revenue figures on which they are based

do not include or aggregate revenues

from non-television affiliated

companies.

The rule changes would also affect

radio stations. The SBA defines a radio

broadcasting station that has no more

than $5 million in annual receipts as a

small business. 13 CFR 121.201, SIC

4832. A radio broadcasting station is an

establishment primarily engaged in

broadcasting aural programs by radio to

the public. Economics and Statistics

Administration, Bureau of Census, U.S.

Department of Commerce, Appendix A–

9. Included in this industry are

commercial, religious, educational, and

other radio stations. Id. Radio

broadcasting stations which primarily

are engaged in radio broadcasting and

which produce radio program materials

are similarly included. Id. The 1992

Census indicates that 96 percent (5,881

of 6,127) of radio station establishments

produced less than $5 million in

revenue in 1992. (The Census Bureau

counts multiple radio stations located at

the same facility as one establishment.

Therefore, each co-located AM/FM

combination counts as one

establishment.) Official Commission

records indicate that 11,334 individual

radio stations were operating in 1992.

FCC News Release No. 31327, Jan. 13,

1993. As of September 1999, official

Commission records indicate that

12,615 radio stations were operating.

FCC News Release, Broadcast Station

Totals as of September 30, 1999

(released November 22, 1999).

Small cable entities, including

MVPDs: The rule changes would also

affect small cable entities, including

MVPDs. SBA has developed a definition

of a small entity for cable and other pay

television services, which includes all

such companies generating $11 million

or less in annual receipts. 13 CFR

121.201, SIC 4841. This definition

includes cable system operators, closed

circuit television services, direct

broadcast satellite services (DBS),

multipoint distribution systems (MDS),

satellite master antenna systems

(SMATV), and subscription television

services. According to the Bureau of the

Census, there were 1,423 such cable and

other pay television services generating

less than $11 million in revenue that

were in operation for at least one year

at the end of 1992. 1992 Economic

Census Industry and Enterprise Receipts

Size Report, Table 2D, SIC 4841 (U.S.

Bureau of the Census data under

contract to the Office of Advocacy of the

U.S. Small Business Administration).

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. 47 CFR 76.901(e). 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). 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. Paul Kagan Associates, Inc., Cable

TV Investor, Feb. 29, 1996 (based on

figures for Dec. 30, 1995). Since then,

some of those companies may have

grown to serve over 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.’’ 47 U.S.C. 543(m)(2). The

Commission has determined that there

are 61,700,000 subscribers in the United

States. Therefore, we found that an

operator serving fewer than 617,000

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 $520 million in the aggregate. 47

CFR 76.1403(b) (SIC 4833). Based on

available data, we find that the number

of cable operators serving 617,000

subscribers or fewer totals 1,450. Paul

Kagan Associates, Inc., Cable TV

Investor, Feb. 29, 1996 (based on figures

for Dec. 30, 1995). Although it seems

certain that some of these 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: The Commission has defined

‘‘small entity’’ for purposes of the

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. 47 CFR 21.961(b)(1).

This definition of a small entity in the

context of MDS auctions has been

approved by the SBA. 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). The Commission completed its

MDS auction in March 1996 for

authorizations in 493 basic trading areas

(BTAs). Of 67 winning bidders, 61

qualified as small entities. One of these

small entities, O’ahu Wireless Cable,

Inc., was subsequently acquired by GTE

Media Ventures, Inc., which did not

qualify as a small entity for purposes of

the MDS auction.

MDS also includes licensees of

stations authorized prior to the auction.

As noted, the SBA has developed a

definition of small entities for pay

television services, which includes all

such companies generating $11 million

or less in annual receipts. 13 CFR

121.201. This definition includes

multipoint distribution systems, and

thus applies to MDS licensees and

wireless cable operators that did not

participate in the MDS auction.

Information available to us indicates

that there are 832 of these licensees and

operators that do not generate revenue

7452 Federal Register / Vol. 65, No. 31 / Tuesday, February 15, 2000 / Rules and Regulations

in excess of $11 million annually.

Therefore, for purposes of this FRFA,

we find there are approximately 892

small MDS providers as defined by the

SBA and the Commission’s auction

rules, and some of these providers may

be subject to our EEO rules.

DBS: As of November 1999, there are

four DBS licensees, one of which is not

in operation. Providing DBS service

requires a great investment of capital to

build, launch, and operate satellite

systems. Typically, small businesses do

not have the financial ability to become

DBS licensees because of the high

implementation costs associated with

launching satellites. Most recent

industry statistics suggest that the

revenue attributed to DBS subscribers

for EchoStar was $682.8 million for the

year of 1998 and $1.55 billion for

DIRECTV. We do not have similar

revenue information for the third

operating licensee, Dominion Video

Satellite, Inc. However, we do not

believe that any DBS licensees could be

categorized as small businesses.

Estimates Based on Staff Size: As

described, for purposes of providing

relief from our EEO rules for entities

with fewer staff resources, the Report

and Order classifies such entities by

number of employees. We estimate that,

in 1997, the total number of full-service

broadcast stations with fewer than five

employees was 5,186, of which 340

were television stations. We base this

estimate on a compilation of 1997

Broadcast Station Annual Employment

Reports (FCC Form 395–B), performed

by staff of the Equal Employment

Opportunity Branch, Mass Media

Bureau, FCC. Similarly, we estimate

that, in 1997, 2,750 cable system or

SMATV employment units employed

fewer than six full-time employees.

Also, in 1997, 725 MVPD employment

units employed fewer than six full-time

employees.

We also estimate that, in 1997, the

total number of full-service broadcast

stations with five to ten employees was

2,145, of which 200 were television

stations. We base this estimate on a

compilation of 1997 Broadcast Station

Annual Employment Reports (FCC Form

395–B), performed by staff of the Equal

Employment Opportunity Branch, Mass

Media Bureau, FCC. Similarly, we

estimate that, in 1997, 322 cable system

or SMATV employment units employed

six to ten full-time employees. Also, in

1997, 65 MVPD employment units

employed six to ten full-time

employees.

D. Summary of Projected Reporting,

Recordkeeping, and Other Compliance

Requirements

The Report and Order adopts changes

to existing EEO recordkeeping and

reporting requirements. It also specifies

which EEO materials are required to be

kept in the public inspection file. All

broadcasters and cable entities must

adhere to the EEO rules’ general antidiscrimination provisions. Broadcasters

with station employment units of five to

ten full-time employees are provided

some relief from EEO requirements, and

station employment units of fewer than

five full-time employees are exempt

altogether, with the exception that all

broadcasters are subject to the

nondiscrimination requirement and

must report any employment

discrimination complaints filed against

them. Cable employment units,

including MVPD employment units,

employing six to ten full-time

employees are also provided some relief

from the Report and Order’s specific

EEO program requirements, and cable

employment units with fewer than six

full-time employees are not required to

demonstrate compliance with the EEO

program requirements. Generally, no

special skills will be necessary to

comply with the requirements.

Specifically, the Report and Order

requires broadcasters and cable entities

to widely disseminate information

concerning job vacancies. Additionally,

broadcasters and cable entities must

undertake two supplemental

recruitment measures described herein.

The first supplemental recruitment

measure requires broadcasters and cable

entities to provide notification of fulltime job vacancies to any requesting

organization if the organization

regularly distributes information about

employment opportunities or refers job

seekers to employers. Depending on the

size of a station’s staff, the second

supplemental recruitment measure

requires broadcasters to engage in at

least four (for station employment units

with more than ten full-time employees)

or two (for station employment units

with five to ten full-time employees) of

the following menu options every two

years: job fairs, job banks and other

general outreach efforts, scholarship

programs, in-house training programs,

mentoring programs, community events

related to employment opportunities in

the industry, industry career events/

programs by educational institutions,

internship programs, the listing of

upper-level vacancies in a job bank or

newsletter of media trade groups whose

membership includes substantial

participation of women and minorities,

and other activities to disseminate

information regarding industry

employment opportunities, as designed

by the broadcaster. Cable employment

units with more than ten full-time

employees must engage in at least two

options from the supplemental

recruitment measures menu every year

and cable employment units with six to

ten full-time employees must engage in

at least one option every year.

Broadcasters and cable entities that

desire more flexibility in their

recruitment procedures may dispense

with the supplemental recruitment

measures as long as they are able to

demonstrate success in achieving broad

outreach to all segments of the

community, as based upon an analysis

of the recruitment source, race, national

origin, and gender of the applicants

attracted by their outreach efforts.

In addition, the Report and Order

requires broadcasters and cable entities

to retain records to demonstrate that

they have recruited for all full-time

permanent positions. To alleviate

recordkeeping burdens, records may be

kept in an electronic format. Such

recordkeeping shall include: listings of

all full-time vacancies filled, listings of

recruitment sources, the address/contact

person/telephone number of each

recruitment source, and dated copies of

advertisements and other

documentation announcing vacancies.

Broadcasters and cable entities engaging

in supplemental recruitment measures

must show organizations which

requested notification and must also

maintain: records and proof of

participation in menu options, the total

number and referral source of all

interviewees, and dates of hire along

with the name of the recruitment source

which referred the hiree. These revised

recordkeeping requirements

significantly reduce the cost of

compliance because broadcasters and

cable entities that use this approach no

longer have to keep extensive records on

the race and gender of all applicants and

interviewees, as was the case under our

former EEO rules. For those

broadcasters and cable entities that opt

out of the supplemental recruitment

measures, we will require that they

maintain records of the recruitment

source, race, national origin, and gender

of qualified applicants in order to

demonstrate that they widely

disseminated information about job

openings. Some broadcasters and cable

entities, especially the ones with fewer

employees, may have only a few

vacancies generally available so that this

option may be less burdensome to them.

Broadcasters’ records must be

Federal Register / Vol. 65, No. 31 / Tuesday, February 15, 2000 / Rules and Regulations 7453

maintained until grant of the renewal

application for the term during which

the hiring activity occurred. Cable

entities must retain their records for a

minimum of seven years. To determine

compliance with the EEO rules, the

Commission may conduct inquiries

requesting the records of a broadcaster

or cable entity.

The Report and Order also requires

stations and cable employment units to

place annually the following EEO

records in their local public inspection

file: listings of full-time vacancies filled

and recruitment sources used for each

vacancy during the preceding year and

the address/contact person/telephone

number of each recruitment source.

Broadcasters and cable entities engaging

in supplemental recruitment measures

must also include in their public file: an

indication of the organizations

requesting notification, the recruitment

source of all full-time hirees during the

preceding year, the total number of

persons interviewed for full-time

vacancies during the preceding year as

well as the total number of interviewees

referred by each recruitment source for

that vacancy, and a brief description of

the menu option items undertaken

during the preceding year. Those

broadcasters and cable entities that opt

out of the supplemental recruitment

measures must include in their public

file: the total number of applicants

generated by each recruitment source

utilized for any full-time vacancy during

the preceding year, and the number of

those applicants who were female and

the number who were minority,

identified by the applicable racial and/

or national origin group with which

each applicant is associated. Station

units must retain the materials in their

file until final action has been taken on

the station’s next license renewal

application, and cable entities must

retain their materials for a period of five

years.

In addition, broadcasters must file a

Statement of Compliance (Form 397)

every second, fourth and sixth year of

the license term, on the anniversary of

the date the station is due to file its

renewal, stating whether the station has

complied with the EEO Rule.

Broadcasters must place a copy of the

latest Statement in the public inspection

file. Broadcasters must also continue to

place a copy of Form 396 (Broadcast

EEO Program Report) in the public

inspection file. However, broadcasters

are no longer required to place a copy

of their station’s Form 395–B (Broadcast

Station Annual Employment Report) in

the public file. Cable employment units

must continue to place a copy of Forms

395–A (Cable Television Annual

Employment Report) or 395–M (MultiChannel Video Program Distributor

Annual Employment Report) in their

public file. Also, most broadcasters

must submit the contents of their

station’s EEO public inspection file to

the FCC at renewal time and midway

through the license term for the

Commission’s mid-term review and

cable entities with six or more full-time

employees must submit copies of their

EEO public inspection file to the

Commission every five years. However,

broadcasters may limit their

submissions to cover only the last 12

months of EEO activity. These changes

reduce burdens on all station and cable

employment units, both by more clearly

defining what must be retained and by

specifying the period of retention.

The Report and Order eliminates

sections concerning specific categories

of recruitment sources from Form 396–

A (Model EEO Program Report). The

Report and Order also eliminates many

sections from Form 396, including

sections requesting information on local

labor force statistics, and the number of

minority and female hires and

promotions. The Report and Order

provides further relief to broadcasters by

enabling them to file only one Form

395–B for all commonly owned stations

in the same market sharing at least one

employee. Form 396 will include a new

section for broadcasters to provide a

narrative statement demonstrating how

the station achieved broad and inclusive

outreach. With respect to cable entities,

the Report and Order eliminates all

sections on Forms 395–A and 395–M

concerning available labor force and

occupational data, employee

promotions and job hires.

E. Steps Taken To Minimize Significant

Economic Impact on Small Entities, and

Significant Alternatives Considered

This Report and Order sets forth the

Commission’s new EEO rules and

procedures, and considers all of 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 new EEO rules

and procedures are designed to keep

essential filing and recordkeeping

burdens at a minimum, and increase the

efficiency of application processing for

all broadcasters and cable entities,

including small entities.

The NPRM requested comment on the

Commission’s proposal to exempt small

staff stations or stations located in small

markets from specific EEO

recordkeeping and reporting

requirements. The NPRM proposed to

increase the current staff exemption

threshold of fewer than five full-time

employees to ten or fewer full-time

employees. There was no specific

proposal regarding the market threshold

for exempting stations. Although we

received a few comments regarding

small market exemptions, the majority

of comments addressed our proposal to

increase the staff exemption threshold.

Commenters argue that an increase is

warranted since stations with small

staffs have limited personnel and

financial resources to carry out EEO

requirements. Other commenters argue

against a total exemption from the

broadcast EEO Rule for stations with ten

or fewer employees since such stations

play a pivotal role in providing essential

entry-level opportunities into the

broadcast industry. As discussed in the

Report and Order, we believe that a total

exemption is unnecessary since the new

EEO Rule streamlines and clarifies

recordkeeping requirements, thereby

benefiting all broadcasters, including

stations with fewer employees. For this

same reason, we also believe that

additional EEO relief is not warranted

for small market stations. Such relief is

already built into the new Rule, as

further evidenced by the flexibility it

affords broadcasters to tailor their EEO

programs to their station’s particular

circumstances, including market size.

However, because fewer staff resources

are available to them, we believe that

station employment units with five to

ten full-time employees, which are the

smallest staff stations subject to our EEO

program requirements, warrant

additional relief from EEO program

requirements. Therefore, for those

broadcasters employing supplemental

recruitment measures, we will require

station employment units with five to

ten full-time employees to engage in

only two of the menu options listed in

the EEO Rule during each two-year

period. Station employment units with

more than ten full-time employees are

required to engage in four menu options

during each two-year period. While not

providing a total exemption from our

EEO Rule, this approach does provide

additional EEO relief to station

employment units with five to ten

employees. Further, we will exempt

radio station employment units with six

to ten employees from new mid-term

review procedures. Currently, mid-term

reviews for all television stations with

five or more full-time employees are

required by statute. However, only

about 200 television stations (or 13%)

had between five and ten employees in

1997. We base this estimate on a

compilation of 1997 Broadcast Station

7454 Federal Register / Vol. 65, No. 31 / Tuesday, February 15, 2000 / Rules and Regulations

Annual Employment Reports (FCC Form

395–B), performed by staff of the Equal

Employment Opportunity Branch, Mass

Media Bureau, FCC. Also, a station will

not qualify for relief if it shares one or

more employees with one or more

commonly owned stations in the same

market and their combined staffs total

more than ten full-time employees since

such stations are considered one

employment unit for EEO purposes.

We also received comments arguing

that cable systems with small staffs

should be provided EEO relief since

they, too, have limited personnel and

financial resources. Upon consideration,

we will require cable employment units

with six to ten full-time employees that

use the supplemental recruitment

measures to engage in only one option

from the supplemental recruitment

measures menu each year, as opposed to

the two options required otherwise.

We will continue to exempt broadcast

station employment units with fewer

than five full-time employees from our

specific EEO program requirements. In

addition, cable employment units with

fewer than six full-time employees will

still not be required to demonstrate

compliance with the EEO program

requirements.

F. Federal Rules That May Duplicate,

Overlap, or Conflict With the EEO Rules

Oxley/Hall maintain that the FCC’s

proposed EEO program substantially

replicates the work of the Equal

Employment Opportunity Commission

(EEOC). Oxley/Hall Comments at 3. As

we stated in the Report and Order,

while the EEOC and FCC share as a

common goal the elimination of

discriminatory employment practices,

the primary functions of the two

agencies differ greatly. Whereas the

EEOC reviews discrimination

complaints in order to provide relief to

victims of discrimination, the FCC’s

principal concern with respect to

discrimination allegations is to

determine the fitness of broadcasters

and cable entities to fulfill their

obligations under the Communications

Act. Moreover, the Memorandum of

Understanding Between the Federal

Communications Commission and the

Equal Employment Opportunity

Commission, 51 FR 21798 (1986),

coordinates and minimizes overlap of

the enforcement efforts of the two

agencies.

Report to Congress: The Commission

will send a copy of the Report and

Order, including this FRFA, in a report

to be sent to Congress pursuant to the

Small Business Regulatory Enforcement

Fairness Act of 1996, 5 U.S.C.

801(a)(1)(A). In addition, the

Commission’s Consumer Information

Bureau, Reference Information Center,

will send a copy of this Report and

Order, including this FRFA, to the Chief

Counsel for Advocacy of the Small

Business Administration. A copy of the

Report and Order and FRFA (or

summaries thereof) will also be

published in the Federal Register.

List of Subjects

47 CFR Part 0

Organization and functions

(Government agencies).

47 CFR Part 73

Radio, Equal employment

opportunity, Reporting and

recordkeeping requirements, Television.

47 CFR Part 76

Cable television, Equal employment

opportunity, Reporting and

recordkeeping requirements.

Federal Communications Commission.

Magalie Roman Salas,

Secretary.

Rule Changes

For the reasons discussed in the

preamble, the Federal Communications

Commission amends 47 CFR parts 0, 73

and 76 as follows:

PART 0—COMMISSION

ORGANIZATION

1. The authority citation for part 0

continues to read as follows:

Authority: Sec. 5, 48 Stat. 1068, as

amended; 47 U.S.C. 155, 225, unless

otherwise noted.

2. Section 0.283 is amended by

revising paragraph (b)(1)(iii) to read as

follows:

§ 0.283 Authority delegated.

* * * * *

(b) * * *

(1) * * *

(iii) Present documented allegations

of failure to comply with the

Commission’s Equal Employment

Opportunity rules and policies.

* * * * *

PART 73—RADIO BROADCAST

SERVICES

3. The authority citation for part 73

continues to read as follows:

Authority: 47 U.S.C. 154, 303, 334 and 336.

4. Section 73.2080 is revised as

follows:

§ 73.2080 Equal employment opportunities

(EEO rule).

(a) General EEO policy. Equal

opportunity in employment shall be

afforded by all licensees or permittees of

commercially or noncommercially

operated AM, FM, 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:

Federal Register / Vol. 65, No. 31 / Tuesday, February 15, 2000 / Rules and Regulations 7455

(1) Recruit for every job vacancy in its

operation. A job filled by an internal

promotion is not considered a vacancy

for which recruitment is necessary.

Religious radio broadcasters who

establish religious affiliation as a

qualification for a job position are not

required to comply with these

recruitment requirements with respect

to that job position or positions, but will

be expected to make reasonable, good

faith efforts to recruit applicants who

are qualified based on their religious

affiliation. Nothing in this section shall

be interpreted to require a broadcaster to

grant preferential treatment to any

individual or group based on race, color,

national origin, religion, or gender.

(i) A station employment unit shall

use recruitment sources for each

vacancy sufficient in its reasonable,

good faith judgment to widely

disseminate information concerning the

vacancy.

(ii) In addition to such recruitment

sources, a station employment unit shall

provide notification of each 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) or two (if it has

five to ten full-time employees) of the

following initiatives during each twoyear period preceding the filing of a

Statement of Compliance pursuant to

subsection (g) hereof:

(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) Participation in other activities

designed by the station employment

unit reasonably calculated to further the

goal of disseminating information as to

employment opportunities in

broadcasting to job candidates who

might otherwise be unaware of such

opportunities.

(3) Analyze its recruitment program

on an ongoing basis to ensure that it is

effective in achieving broad outreach to

potential applicants, and address any

problems found as a result of its

analysis.

(4) Periodically analyze measures

taken to:

(i) Disseminate the station’s equal

employment opportunity program to job

applicants and employees;

(ii) Review seniority practices to

ensure that such practices are

nondiscriminatory;

(iii) Examine rates of pay and fringe

benefits for employees having the same

duties, and eliminate any inequities

based upon race, national origin, color,

religion, or sex discrimination;

(iv) Utilize media for recruitment

purposes in a manner that will contain

no indication, either explicit or implicit,

of a preference for one race, national

origin, color, religion or sex over

another;

(v) Ensure that promotions to

positions of greater responsibility are

made in a nondiscriminatory manner;

(vi) Where union agreements exist,

cooperate with the union or unions in

the development of programs to assure

all persons 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, if applicable, 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:

(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

7456 Federal Register / Vol. 65, No. 31 / Tuesday, February 15, 2000 / Rules and Regulations

pursuant to paragraph (c)(1)(ii) of this

section, which should be separately

identified), identified by name, address,

contact person and telephone number;

(iii) The recruitment source that

referred the hiree for each full-time

vacancy during the preceding year;

(iv) Data reflecting the total number of

persons interviewed for full-time

vacancies during the preceding year and

the total number of interviewees

referred by each recruitment source

utilized in connection with such

vacancies; and

(v) A list and brief description of

initiatives undertaken pursuant to

paragraph (c)(2) of this section during

the preceding year, if applicable.

(7) Stations shall substantially comply

with paragraph (c)(1)(i) of this section in

connection with hires for part-time

positions. The provisions of paragraph

(c) are not otherwise applicable to hires

for part-time positions.

(d) Alternative recruitment

requirements. A station employment

unit may elect not to utilize the

provisions of paragraph (c)(1)(ii)

(notification to community groups) and

(c)(2) (menu options) of this section,

provided that it complies with the

following requirements:

(1) The station employment unit shall

maintain records as required by

paragraph (c)(5)(i) through (iii) of this

section and shall maintain, in lieu of the

records required by paragraph (c)(5)(iv)

through (vi) of this section, data

reflecting the recruitment source,

gender, and racial and/or ethnic status

of applicants for each full-time job

vacancy filled by the station

employment unit;

(2) The station employment unit shall

include in the annual EEO public file

report required by paragraph (c)(6) of

this section the information specified in

paragraph (c)(6)(i) and (ii) and, in lieu

of the information required by

paragraph (c)(6)(iii) through (v), data

reflecting, for each recruitment source

utilized for any full-time vacancy during

the preceding year, the total number of

applicants generated by that source, the

number of applicants who were female,

and the number of applicants who were

minority, identified by the applicable

racial and/or ethnic group with which

each applicant is associated.

(3) Station employment units electing

to proceed under this paragraph shall

otherwise comply with the requirements

specified in paragraph (c) of this

section.

(e) Election procedures. Within fortyfive days of the effective date of this

section, each station employment unit

shall elect whether it wishes to utilize

the recruitment procedures specified in

paragraph (c) of this section or the

alternate recruitment procedures

specified in paragraph (d) of this section

and shall file with the Commission a

statement indicating the election which

shall also be placed in the station(s)

public inspection file maintained

pursuant to § 73.3526 or § 73.3527. An

applicant for a new station or for the

transfer or assignment of an existing

license filed on FCC Form 314 or 315

shall state its election on FCC Form

396–A submitted with the application.

A station employment unit may change

its election every two years at the time

of the filing of the Statement of

Compliance referenced in paragraph

(i)(1) of this section, or at the time of the

filing of its renewal application. If the

station employment unit wishes to

change its election, it shall so state in its

Statement of Compliance or FCC Form

396 accompanying the renewal

application.

(f) Mid-term review for broadcast

stations. The Commission will conduct

a mid-term review of the employment

practices of each broadcast television

station and each radio station that is

part of an employment unit of more

than ten full-time employees four years

following the station’s most recent

license expiration date as specified in

§ 73.1020. Each such licensee is

required to file with the Commission the

station’s EEO public file report, as

described in paragraphs (c)(6) or (d)(2)

of this section, along with the relevant

Statement of Compliance (Form 397), as

described in paragraph (i)(1) of this

section, four months before the date

specified in the previous sentence. The

EEO public file report should cover the

station’s activities during the 12-month

period prior to its submission.

(g) Small station exemption. The

provisions of paragraphs (b), (c), (d), (e),

and (f) of this section shall not apply to

station employment units that have

fewer than five full-time employees.

(h) Definitions. For the purposes of

this section:

(1) A full-time employee is a

permanent employee whose regular

work schedule is 30 hours per week or

more. A part-time employee is a

permanent employee whose regular

work schedule is less than 30 hours per

week.

(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.

(i) 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) Each broadcast station shall file

with the Commission a Statement of

Compliance (FCC Form 397) stating

whether the station has complied with

the outreach provisions of this section

during the two-year period prior to the

date the station files the Statement.

Before filing the Statement, stations

shall review their recruitment activity

during the two-year period along with

requirements of this section and

determine whether they have been in

compliance with of this section during

the relevant period. The Statement of

Compliance shall also report any change

in the station’s recruitment election

pursuant to paragraph (e) of this section.

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. As with Form 397, stations

shall indicate on Form 396 whether they

have complied with of this section. In

addition, stations shall provide a

narrative statement demonstrating how

their recruitment efforts achieved broad

and inclusive outreach during the two

years prior to filing the Form 396.

Stations should also include in Form

396 any change in recruitment election

pursuant to paragraph (e) of this section.

If the station believes it was not or may

not have been in compliance, it shall

submit an appropriate explanation on

Form 396 or 397, as applicable. The

Statement of Compliance (Form 397) is

filed every second, fourth and sixth year

of the license term, on the anniversary

of the date the station is due to file its

application for renewal of license. 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 Statement of

Compliance or Form 396, its Statement

should be based on the licensee’s EEO

recruitment activity during the period

starting with the date it acquired the

station. Stations are required to

maintain a copy of their Statement of

Compliance and Form 396 in the

station’s public file in accordance with

the provisions of §§ 73.3526 and

73.3527.

(2) On the date a station is due to file

for renewal of license, as part of Form

396, it shall file with the Commission an

EEO public file report concerning

recruitment activity during the 12-

month period preceding the filing date.

The required contents of the public file

report are described in paragraphs (c)(6)

Federal Register / Vol. 65, No. 31 / Tuesday, February 15, 2000 / Rules and Regulations 7457

or (d)(2) of this section. On the date

each television station or radio station

which is part of an employment unit

with more than ten full-time employees

files its Statement of Compliance (Form

397) at the mid-term point of its license

term, the station shall file, together with

Form 397, an EEO public file report

concerning recruitment activity during

the 12-month period prior to filing the

EEO public file report. 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.

(3) If a station is subject to a time

brokerage agreement, the licensee shall

file Statements of Compliance, Forms

396, and EEO public file reports

concerning only its own recruitment

activity. If a licensee is a broker of

another station or stations, the licenseebroker shall include its recruitment

activity for the brokered station(s) in

determining the bases of the Statements

of Compliance, Forms 396 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

Statements of Compliance, Forms 396,

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 licenseebroker 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

Statements of Compliance, Forms 396,

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 this section. Stations shall ensure

that they maintain records sufficient to

verify the accuracy of information

provided in Statements of Compliance,

Forms 396, and EEO public file reports.

To determine compliance with this

section, the Commission may conduct

inquiries of licensees at random or if it

has evidence of a possible violation of

this section. In addition, the

Commission will conduct random

audits. Specifically, each year

approximately five percent of all

licensees in the television and radio

services will be randomly selected for

audit, ensuring that, even though the

number of radio licensees is

significantly larger than television

licensees, both services are represented

in the audit process. Upon request,

stations shall make records available to

the Commission for its review.

(5) The public may file complaints

throughout the license term based on a

station’s Statement of Compliance or the

contents of a station’s public file.

Provisions concerning filing,

withdrawing, or non-filing of informal

objections or petitions to deny license

renewal, assignment, or transfer

applications are delineated in

§§ 73.3584 and 73.3587–73.3589.

(j) Sanctions and remedies. The

Commission may issue appropriate

sanctions and remedies for any violation

of this section.

5. Section 73.3526 is amended by

revising paragraph (e)(7) to read as

follows:

§ 73.3526 Local public inspection file of

commercial stations.

* * * * *

(e) * * *

(7) Equal Employment Opportunity

file. Such information as is required by

§ 73.2080 to be kept in the public

inspection file. These materials shall be

retained until final action has been

taken on the station’s next license

renewal application.

* * * * *

6. Section 73.3527 is amended by

revising paragraph (e)(6) to read as

follows:

§ 73.3527 Local public inspection file of

noncommercial educational stations.

* * * * *

(e) * * *

(6) Equal Employment Opportunity

file. Such information as is required by

§ 73.2080 to be kept in the public

inspection file. These materials shall be

retained until final action has been

taken on the station’s next license

renewal application.

* * * * *

PART 76—CABLE TELEVISION

SERVICE

7. The authority citation for part 76

continues to read as follows:

Authority: 47 U.S.C. 151, 152, 153, 154,

301, 302, 303, 303a, 307, 308, 309, 312, 315,

317, 325, 503, 521, 522, 531, 532, 533, 534,

535, 536, 537, 543, 544, 544a, 545, 548, 549,

552, 554, 556, 558, 560, 561, 571, 572, 573.

8. Section 76.75 is amended by

revising the undesignated introductory

text, paragraphs (b), (c) and (f) and

adding paragraphs (g), (h), (i), (j) and (k)

to read as follows:

§ 76.75 Specific EEO program

requirements.

Under the terms of its program, an

employment unit must:

* * * * *

(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 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 cable entity 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 cable

employment unit shall provide

notification of each 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 cable employment

unit with its name, mailing address, email 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)

or one (if the unit has six to ten full-time

employees) of the following initiatives

during each twelve-month period

preceding the filing of an annual

employment report:

(i) Participation in at least two job

fairs by unit personnel who have

substantial responsibility in the making

of hiring decisions;

(ii) Hosting of at least one job fair;

(iii) Co-sponsoring at least one job fair

with organizations in the business and

professional community whose

membership includes substantial

participation of women and minorities;

(iv) Participation in at least two

events sponsored by organizations

representing groups present in the

community interested in cable

employment issues, including

conventions, career days, workshops,

and similar activities;

7458 Federal Register / Vol. 65, No. 31 / Tuesday, February 15, 2000 / Rules and Regulations

(v) Establishment of an internship

program designed to assist members of

the community in acquiring skills

needed for cable 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 cable

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 cable 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 cable

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;

and

(xiii) Participation in other activities

reasonably calculated by the unit to

further the goal of disseminating

information as to employment

opportunities in cable communications

to job candidates who might otherwise

be unaware of such opportunities.

(c) Retain records sufficient to

document that it has satisfied the

requirements of paragraphs (b)(1) and

(b)(2) of this section. Such records,

which may be maintained in an

electronic format, shall be retained for a

period of seven years. Such records

need not be submitted to the

Commission unless specifically

requested. The following records shall

be maintained:

(1) Listings of all full-time job

vacancies filled by the cable

employment unit, identified by job title;

(2) For each such vacancy, the

recruitment sources utilized to fill the

vacancy (including, if applicable,

organizations entitled to notification

pursuant to paragraph (b)(1)(ii) of this

section, 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 job

vacancies;

(4) Documentation necessary to

demonstrate performance of the

initiatives required by paragraph (b)(2)

of this section, if applicable, including

information sufficient to fully disclose

the nature of the initiative and the scope

of the unit’s participation, including the

unit personnel involved;

(5) The total number of interviewees

for each vacancy and the referral

sources for each interviewee; and

(6) The date each vacancy was filled

and the recruitment source that referred

the hiree.

* * * * *

(f) A cable entity may elect not to

utilize the provisions of paragraphs

(b)(1)(ii) (notification to requesting

community groups) and (b)(2) (menu

options) hereof, provided that it

complies with the following alternative

recruitment requirements:

(1) The employment unit shall

maintain records as required by

paragraph (c)(1) through (c)(3) of this

section, and shall maintain, in lieu of

the records required by paragraph (c)(4)

through (c)(6) of this section, data

reflecting the recruitment source,

gender, and racial and/or ethnic status

of applicants for each full-time job

vacancy filled by the employment unit;

(2) The employment unit shall place

annually in its public file maintained

pursuant to § 76.1702 the information

specified in § 76.1702(b)(1) and (2) and,

in lieu of the information required by

§ 76.1702(b)(3) through (5), data

reflecting, for each recruitment source

utilized for any full-time vacancy during

the preceding year, the total number of

applicants generated by that source, the

number of applicants who were female,

and the number of applicants who were

minority, identified by the applicable

racial and/or ethnic group with which

each applicant is associated.

(3) Cable employment units electing

to proceed under this paragraph shall

otherwise comply with the requirements

specified in paragraph (b) of this

section.

(g) A cable entity 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.

(h) Within forty-five days of the

effective date of this paragraph (h) each

cable employment unit with six or more

fulltime employees shall elect whether

it wishes to utilize the recruitment

procedures specified in paragraph (b) of

this section or the alternate recruitment

procedures specified in paragraph (f) of

this section and shall file with the

Commission a statement indicating the

election which shall also be placed in

the public inspection file maintained

pursuant to § 76.1702. An employment

unit may change its election annually at

the time of the filing of the FCC Form

395–A or FCC Form 395–M. If the

employment unit wishes to change its

election, it shall so state in its FCC Form

395–A or FCC Form 395–M. A cable

employment unit may also change its

election at the time of a substantial

change in its ownership by placing a

statement of its new election in the

public inspection file.

(i) 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 assure

all persons equal opportunity for

employment, and including an effective

nondiscrimination clause in new or

renegotiated union agreements;

(2) Reviewing seniority practices to

ensure that such practices are

nondiscriminatory;

(3) Examining rates of pay and fringe

benefits for employees having the same

duties, and eliminating any inequities

based upon race, national origin, color,

religion, age, or sex discrimination;

(4) Evaluating the recruitment

program to ensure that it is effective in

achieving a broad outreach to potential

applicants.

(5) Utilizing media for recruitment

purposes in a manner that will contain

no indication, either explicit or implicit,

of a preference for one race, national

origin, color, religion, age, or sex over

another; and

(6) Avoiding the use of selection

techniques or tests that have the effect

of discriminating against qualified

minority groups or women.

(j) Cable entities shall substantially

comply with paragraph (b)(1)(i) of this

section in connection with hires for

part-time positions. The remaining

provisions of this section are not

otherwise applicable to hires for parttime positions but are applicable only to

full-time positions, defined as requiring

a regular work schedule of 30 or more

hours per week.

(k) The provisions of paragraphs

(b)(1)(ii), (b)(2), (c), (f) and (g) of this

section shall not apply to cable

employment units that have fewer than

six full-time employees.

9. Section 76.77 is amended by

revising paragraphs (a), (b), and (c), and

Federal Register / Vol. 65, No. 31 / Tuesday, February 15, 2000 / Rules and Regulations 7459

adding paragraphs (e), (f), and (g) to read

as follows:

§ 76.77 Reporting requirements and

enforcement.

(a) Annual employment reports.

Employment data on the annual

employment report required by

§ 76.1802 shall reflect the figures from

any one payroll period in July, August,

or September of the year during which

the report is filed. Unless instructed

otherwise by the Commission, the same

payroll period shall be used for each

successive annual employment report.

Employment units shall also provide

EEO recruitment information covering a

12-month period, as requested and

explained on the form. If a cable entity

acquires a unit during the twelve

months covered by the annual

employment report, the recruitment

activity in the report shall cover the

period starting with the date the entity

acquired the unit.

(b) Certification of Compliance. The

Commission will use the recruitment

information submitted on a unit’s

annual employment report to determine

whether the unit is in compliance with

the provisions of this subpart.

Employment profile statistics provided

about race, ethnicity, and gender of

employees will not be used to determine

compliance with the EEO rules. 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 annual employment reports in

the years they are investigated. If an

entity acquires a unit during the period

covered by the supplemental

investigation, the information submitted

by the unit as part of the investigation

shall cover the period starting with the

date the operator acquired the unit. The

supplemental investigation information

shall include a copy of the unit’s EEO

public file report for the preceding year.

* * * * *

(e) 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 annual

employment reports, supplemental

investigation responses, and in the EEO

program information required by

§ 76.1702 to be kept in a unit’s public

file. To determine compliance with the

EEO rules, the Commission may

conduct inquiries of employment units

at random or if the Commission has

evidence of a possible violation of the

EEO rules. Upon request, employment

units shall make records available to the

Commission for its review.

(f) Public complaints. The public may

file complaints based on annual

employment reports, supplemental

investigation information, or the

contents of a unit’s public file.

(g) Sanctions and remedies. The

Commission may issue appropriate

sanctions and remedies for any violation

of the EEO rules.

10. Section 76.79 is revised to read as

follows:

§ 76.79 Records available for public

inspection.

A copy of every annual employment

report, and any other employment

report filed with the Commission, and

complaint report that has been filed

with the Commission, and copies of all

exhibits, letters, and other documents

filed as part thereof, all amendments

thereto, all correspondence between the

cable entity and the Commission

pertaining to the reports after they have

been filed in all documents

incorporated therein by reference,

unless specifically exempted from the

requirement, are open for public

inspection at the offices of the

Commission in Washington, D.C.

Note to § 76.59: Cable operators must also

comply with the public file requirements

§ 76.1702.

11. Section 76.1702 is added to read

as follows:

§ 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 annual employment reports

filed with the Commission pursuant to

§ 76.77 and the equal employment

opportunity program information

described in paragraph (b) or (c) of this

section. These materials shall be placed

in the unit’s public inspection file

annually by the date that the unit’s

annual employment report is due to be

filed and shall be retained for a period

of five years. The public inspection file

should also contain the election

information required by § 76.75 (h),

insofar as it is not included in the

entity’s annual employment report. 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 multiple cable

operator shall be maintained at the

central office of the headquarters

employment unit. The cable entity shall

provide reasonable accommodation at

these locations for undisturbed

inspection of its equal employment

opportunity records by members of the

public during regular business hours.

(b) The following equal employment

opportunity program information shall

be included annually in the unit’s

public file, and on the unit’s web site,

if it has one, at the time of the filing of

its FCC Form 395–A or FCC Form 395–

M, except as indicated in paragraph (c)

of this section:

(1) A list of all full-time vacancies

filled by the cable 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), 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.

(c) An entity that elects to utilize the

alternative recruitment procedure

pursuant to § 76.75(f) shall annually

include in the public inspection file the

information required therein.

12. Section 76.1802 is added to read

as follows:

§ 76.1802 Equal employment opportunity.

Each employment unit with six or

more full-time employees shall file an

annual employment report on FCC Form

395–A (if cable operator or SMATV) or

Form 395–M (if MVPD) with the

Commission on or before September 30

of each year, in accordance with § 76.77.

[FR Doc. 00–3067 Filed 2–14–00; 8:45 am]

BILLING CODE 6712–01–U