Proposed Rule2021-18665
Review of the Commission's Broadcast and Cable Equal Employment Opportunity Rules and Policies
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
August 31, 2021
Issuing agencies
Federal Communications Commission
Abstract
In this document, the Commission seeks to update the record in MB Docket No. 98-204, regarding how the Commission can recommence the collection of data on the FCC Form 395-B, as contemplated by the Communications Act of 1934, as amended (Act).
Full Text
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<title>Federal Register, Volume 86 Issue 166 (Tuesday, August 31, 2021)</title>
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[Federal Register Volume 86, Number 166 (Tuesday, August 31, 2021)]
[Proposed Rules]
[Pages 48610-48617]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2021-18665]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Parts 73 and 76
[MB Docket No. 98-204; FCC 21-88; FR ID 42735]
Review of the Commission's Broadcast and Cable Equal Employment
Opportunity Rules and Policies
AGENCY: Federal Communications Commission.
ACTION: Proposed rule.
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SUMMARY: In this document, the Commission seeks to update the record in
MB Docket No. 98-204, regarding how the Commission can recommence the
collection of data on the FCC Form 395-B, as contemplated by the
Communications Act of 1934, as amended (Act).
DATES: Comments are due on or before September 30, 2021; reply comments
are due on or before November 1, 2021.
ADDRESSES:
<bullet> Electronic Filers: Comments may be filed electronically
using the internet by accessing the ECFS: <a href="http://apps.fcc.gov/ecfs/">http://apps.fcc.gov/ecfs/</a>.
<bullet> Paper Filers: Parties who choose to file by paper must
file an original and one copy of each filing.
<bullet> Filings can be sent by commercial overnight courier, or by
first-class or overnight U.S. Postal Service mail. All filings must be
addressed to the Commission's Secretary, Office of the Secretary,
Federal Communications Commission.
<bullet> Commercial overnight mail (other than U.S. Postal Service
Express Mail and Priority Mail) must be sent to 9050 Junction Drive,
Annapolis Junction, MD 20701.
<bullet> U.S. Postal Service first-class, Express, and Priority
mail must be addressed to 45 L Street NE, Washington, DC 20554.
<bullet> Effective March 19, 2020, and until further notice, the
Commission no longer accepts any hand or messenger delivered filings.
This is a temporary measure taken to help protect the health and safety
of individuals, and to mitigate the transmission of COVID-19. See FCC
Announces Closure of FCC Headquarters Open Window and Change in Hand-
Delivery Policy, Public Notice, DA 20-304 (March 19, 2020). <a href="https://www.fcc.gov/document/fcc-closes-headquarters-open-window-and-changes-hand-delivery-policy">https://www.fcc.gov/document/fcc-closes-headquarters-open-window-and-changes-hand-delivery-policy</a>.
People with Disabilities: To request materials in accessible
formats for people with disabilities (braille, large print, electronic
files, audio format), send an email to <a href="/cdn-cgi/l/email-protection#f6909595c3c6c2b6909595d8919980"><span class="__cf_email__" data-cfemail="e88e8b8bddd8dca88e8b8bc68f879e">[email protected]</span></a> or call the
Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-
418-0432 (TTY).
FOR FURTHER INFORMATION CONTACT: Brendan Holland, Media Bureau,
Industry Analysis Division, <a href="/cdn-cgi/l/email-protection#f5b787909b91949bdbbd9a9999949b91b5939696db929a83"><span class="__cf_email__" data-cfemail="efad9d8a818b8e81c1a78083838e818baf898c8cc1888099">[email protected]</span></a>, (202) 418-2757.
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's
Further Notice of Proposed Rulemaking (FNPRM), FCC 21-88, in MB Docket
No. 98-204, adopted on July 23, 2021, and
[[Page 48611]]
released on July 26, 2021. The complete text of this document is
available electronically via the FCC's website at <a href="https://docs.fcc.gov/public/attachments/FCC-21-88A1.pdf">https://docs.fcc.gov/public/attachments/FCC-21-88A1.pdf</a>. To request materials in accessible
formats for people with disabilities (Braille, large print, electronic
files, audio format), send an email to <a href="/cdn-cgi/l/email-protection#6b0d08085e5b5f2b0d0808450c041d"><span class="__cf_email__" data-cfemail="83e5e0e0b6b3b7c3e5e0e0ade4ecf5">[email protected]</span></a> (mail to:
<a href="/cdn-cgi/l/email-protection#e2848181d7d2d6a2848181cc858d94"><span class="__cf_email__" data-cfemail="6a0c09095f5a5e2a0c0909440d051c">[email protected]</span></a>) or call the FCC's Consumer and Governmental Affairs
Bureau at (202) 418-0530 (voice), (202) 418-0432 (TTY).
Synopsis
1. Introduction: By this FNPRM, we seek to refresh the existing
record regarding the statutorily mandated collection of data on the FCC
Form 395-B (Form 395-B, the broadcast station Annual Employment Report,
can be found at <a href="https://transition.fcc.gov/Forms/Form395B/395b.pdf">https://transition.fcc.gov/Forms/Form395B/395b.pdf</a>), as
contemplated by the Communications Act of 1934, as amended (Act). This
employment report form is intended to gather workforce composition data
from broadcasters on an annual basis but the form and data have not
been collected for many years. The filing of the form was suspended in
2001 in the wake of a decision by the U.S. Court of Appeals for the
District of Columbia Circuit (D.C. Circuit) vacating certain aspects of
the Commission's Equal Employment Opportunity (EEO) requirements. While
the Commission in 2004 adopted revised regulations regarding the filing
of Form 395-B and updated the form, the requirement that broadcasters
once again submit the form to the Commission was suspended until issues
were resolved regarding confidentiality of the employment data. To
date, those issues remain unresolved, and the filing of Form 395-B
remains suspended. Accordingly, by this FNPRM, we seek to refresh the
record regarding the collection of broadcaster workforce composition
data and obtain further input on the legal, logistical, and technical
issues surrounding FCC Form 395-B.
2. Background. The Commission has administered regulations
governing the EEO responsibilities of broadcast licensees since 1969,
and of cable operators since 1972. The Commission's EEO rules prohibit
employment discrimination on the basis of race, color, religion,
national origin, age, or sex, and require broadcasters and MVPDs to
provide equal employment opportunities. In addition to the broad EEO
protections applicable to all full-power radio and television
broadcasters, licensees including Low Power and Class A television
stations and multichannel video programming distributors (MVPDs) of a
specific size must also adhere to EEO program requirements. (Permittees
and licensees of Low Power FM are not subject to the EEO program
requirements of this rule section. See 47 CFR 73.801.) Specifically,
the Commission's rules require that each broadcast station that is part
of an employment unit of five or more full-time employees, and each
MVPD employment unit with six or more full-time employees establish,
maintain, and carry out a positive continuing program to ensure equal
opportunity and nondiscrimination in employment policies and practice.
3. The Commission has also historically collected data from
broadcasters and MVPDs about their workforce composition based on race
and gender categories. After finding that, among other things,
``increased numbers of females and minorities in positions of
management authority in the cable and broadcast television industries
advances the Nation's policy favoring diversity in the expression of
views in the electronic media,'' Congress established a statutory
requirement for the Commission to maintain its existing EEO regulations
and forms as applied to television stations, which included its
collection of workforce composition data from television broadcasters.
(While Congress did not codify the Commission's previously existing EEO
requirements for radio broadcast licensees, the Commission has found
that Congress ratified the Commission's authority to promulgate EEO
rules for radio as well as television licensees.) In addition, Congress
revised the requirement that cable operators report employment data,
first established in the 1984 Cable Act, to include additional job
categories and extended the requirement to include MVPDs.
4. Section 334(a) of the Communications Act of 1934, as amended
(the Act), states that ``except as specifically provided in this
section, the Commission shall not revise (1) the regulations concerning
equal employment opportunity as in effect on September 1, 1992 (47 CFR
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.''
Section 334(c) authorizes the Commission to make only ``nonsubstantive
technical or clerical revisions'' to the regulations described in
section 334(a) ``as necessary to reflect changes in technology,
terminology, or Commission organization.'' Thus, the Commission has
previously concluded that it is directed by statute to require the
submission of such employee data from television broadcast licensees.
The Commission regularly collected this data from 1970 until 2001 when
the Commission suspended filing of Form 395-B in response to two D.C.
Circuit decisions regarding the unconstitutionality of the Commission's
use of data collected on the Form 395-B to assess compliance with EEO
requirements, although the collection of data itself has never been
held facially invalid on constitutional grounds.
5. Specifically, in Lutheran Church-Missouri Synod v. FCC (Lutheran
Church), the D.C. Circuit reversed and remanded a Commission finding--
based on rules that required comparison of the race and sex of each
applicant and person hired with the overall availability of minorities
in the relevant labor force--that Lutheran Church had failed to make
adequate efforts to recruit minorities. Lutheran Church-Missouri Synod
v. FCC, 141 F.3d 344, 347-48 (D.C. Cir. 1998) (Lutheran Church), pet.
for reh'g denied, 154 F.3d 487, pet. for reh'g en banc denied, 154 F.3d
494 (D.C. 1998). The court concluded that use of broadcaster employee
data to assess EEO compliance in the context of license renewal
pressured broadcasters to engage in race-conscious hiring in violation
of the equal protection component of the Due Process Clause of the
Fifth Amendment of the Constitution. In reaching this conclusion, the
court applied strict constitutional scrutiny applicable to racial
classifications imposed by the federal government and determined that
the Commission's stated purpose of furthering programming diversity was
not compelling and its broadcast EEO rules were not narrowly tailored
to further that interest. 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.''
6. On remand, the Commission crafted new EEO rules requiring that
broadcast licensees undertake an outreach program to foster equal
employment opportunities in the broadcasting industry. The Commission
also reinstated the requirement that broadcasters file employee data on
Form 395-B with the Commission annually. In adopting these revised
rules and reinstating the collection of workforce data, the Commission
stated that:
7. The Commission will no longer use the employment profile data in
the annual employment reports in screening renewal applications or
assessing compliance with EEO program
[[Page 48612]]
requirements. The Commission will use this information only to monitor
industry employment trends and report to Congress.
8. On reconsideration, the Commission explained that it
``disagree[d] with [the] contention that the collection of employment
data might result in raced-based hiring decisions.'' The Commission
also explained that it ``will summarily dismiss any petition filed by a
third party based on Form 395-B employment data'' and it ``will not use
this data as a basis for conducting audits or inquiries.'' The
Commission also codified the following Note to Sec. 73.3612 of its
rules (which requires the collection of employment data from
broadcasters).
9. Data concerning the gender, race and ethnicity of a broadcast
station's workforce collected in the annual employment report will be
used only for purposes of analyzing industry trends and making reports
to Congress. Such data will not be used for the purpose of assessing
any aspect of an individual broadcast licensee's compliance with the
equal employment opportunity requirements of Sec. 73.2080 of the
Commission's rules.
10. In MD/DC/DE Broadcasters Association v. FCC, several state
broadcaster associations challenged the revised EEO outreach rules,
which had allowed broadcasters the flexibility to choose between two
options designed to foster employment opportunities in the industry.
Specifically, the revised EEO outreach rules consisted of Option A,
which required licensees to undertake four approved recruitment
initiatives in a two-year period without reporting the race and sex of
each job applicant, or Option B, which allowed broadcasters to design
their own outreach programs but required reporting of the race and sex
of each applicant. MD/DC/DE Broadcasters Association v. FCC, 236 F.3d
13, 17 (2001) (MD/DC/DE Broadcasters), pet. for reh'g denied., 253 F.3d
732 (D.C. Cir. 2001), cert. denied, 122 S. Ct. 920 (2002). The D.C.
Circuit again applied strict judicial scrutiny and found that Option B
violated the equal protection component of the Due Process Clause of
the Fifth Amendment because, by examining the number of women and
minorities in the applicant pool and then investigating any broadcaster
with ``few or no'' women or minority applicants, the Commission
``pressured'' broadcasters to focus resources on recruiting women and
minorities. The court further found that racial data about job
applicants were not probative on the question of a broadcaster's
efforts to achieve broad outreach or ``narrowly tailored to further the
Commission's stated goal of non-discrimination in the broadcast
industry.'' Because the court found that Option B was not severable
from the rest of the rules, it vacated them in their entirety.
Following this decision, on January 31, 2001, the Commission suspended
the requirement for broadcasters and MVPDs to file employee data on
Forms 395-B and 395-A, respectively, and thus no workforce composition
data has been collected in over twenty years.
11. On November 20, 2002, the Commission released its Second Report
and Order and Third NPRM, establishing new EEO rules requiring
broadcast licensees and MVPDs to recruit for all full-time job
openings, provide notice of job vacancies to recruitment organizations
that request notification, undertake additional outreach measures, such
as job fairs and scholarship programs, and refrain from discrimination
in employment practices. The Commission eliminated the former Option B,
which had linked the outreach requirement to data regarding the race
and sex of each applicant. The Commission explained that its new EEO
rules were ``race and gender neutral'' and ``will not pressure
employers to favor anyone on the basis of race, ethnicity, or gender.''
The Commission deferred action on issues relating to the annual
employment report forms, in part because it needed to incorporate new
standards for classifying data on race and ethnicity adopted by the
Office of Management and Budget (OMB) in 1997. The Commission also
explained that the annual employment report is ``unrelated to the
implementation and enforcement of our EEO program'' and ``data
concerning the entity's workforce is no longer pertinent to the
administration of our EEO outreach requirements.''
12. On June 4, 2004, the Commission released its Third Report and
Order and Fourth Notice of Proposed Rulemaking reinstating the
requirement for broadcasters and MVPDs to report employee data on Forms
395-B and 395-A, respectively. The Commission re-adopted the Note to
Sec. 73.3612 that it previously adopted in 2000 stating that the data
collected would be used exclusively for the purpose of compiling
industry employment trends and making reports to Congress, and not to
assess any aspect of a broadcaster's or MVPD's compliance with the EEO
rules. Although the Commission stated that it does not ``believe that
the filing of annual employment reports will unconstitutionally
pressure entities to adopt racial or gender preferences in hiring,'' it
acknowledged the concerns raised by broadcasters and sought comment in
the Fourth NPRM on whether, moving forward, data reported on Form 395-B
should be kept confidential.
13. In the Fourth NPRM, the Commission noted that its practice for
more than thirty years before suspending collection of the Form 395-B
in 2001 had been to make the Forms 395-B filed by broadcasters
available for public inspection. The Commission also stated that there
was no exemption from the disclosure requirements of the Freedom of
Information Act (FOIA) that would have permitted the Commission to keep
the Form's data confidential, and therefore it did not specifically
seek comment on this issue. The Commission noted, however, that the
then-recently passed Confidential Information Protection and
Statistical Efficiency Act of 2002 (CIPSEA) allows agencies to collect
information for statistical purposes under a pledge of confidentiality.
The Fourth NPRM noted that, if an agency collects information pursuant
to CIPSEA under a pledge of confidentiality, the information is exempt
from release under FOIA and may not be disclosed in an identifiable
form for any non-statistical purpose without the informed consent of
the respondent. The Fourth NPRM therefore sought comment on whether
CIPSEA could apply to the Form 395-B and whether changing the
Commission's approach of making the information public would be
consistent with section 334 of the Act. These issues remain unresolved,
and to date, the collection of employee data from broadcast stations or
MVPDs has not recommenced.
14. Discussion: As discussed above, this FNPRM seeks to refresh the
record with respect to the questions raised in the 2004 Fourth NPRM and
specifically asks for any additional input on the outstanding issue of
whether employee data reported by broadcast licensees on Forms 395-B
can or should be kept confidential and/or on a non-station-attributable
basis. As detailed below, there are a number of statutes, regulations,
and legal precedent relevant to the issue, as well as technical
concerns regarding the collection and maintenance of the data. In
exploring these issues, we seek to balance our statutory obligation
under section 334(a) of the Act to collect pertinent employment data
with the guidance provided by the D.C. Circuit's rulings in Lutheran
Church and MD/DC/DE Broadcasters, which place limits on how data
regarding the racial, ethnic, and gender make-up of a licensee's
workforce may be used in the regulatory
[[Page 48613]]
context. We seek comment on these and other relevant issues. We note
that the Commission has broad authority under the Act to collect
information to carry out its responsibilities and prepare reports to
inform Congress and the public.
15. Importantly, neither Lutheran Church nor MD/DC/DE Broadcasters
invalidated the Congressionally mandated data collection of employment
data or making the data available to the public. Rather, the courts
vacated certain rules based on how the Commission used employment data
to assess EEO compliance, but neither court ruled that simply
collecting and making the data public is unconstitutional. Nor did the
courts address the constitutionality of the Form 395-B itself, or the
requirement that the Commission collect employee data using the Form
395-B that would be available to the public. Given the passage of time,
we seek to update the record to better inform the Commission's
consideration of these matters as they may bear on the collection and
permissible use of this required data collection. Specifically, we seek
to refresh the now sixteen-year-old record by encouraging commenters to
provide any new, innovative, and different suggestions for collecting
and handling employment information on Form 395-B.
16. Broadcasters have expressed concern previously that the
collection of employment data on a station-attributed basis and its
access by Commission staff and, in particular, release to the public
will ``pressure'' stations to adopt race- or gender-based hiring
policies in contravention of the D.C. Circuit's decisions. Since the
Commission last sought comment on this issue, have there been any
relevant developments in the public disclosure of employment data? For
example, do broadcast licensees, either themselves or through third
parties, now make station-attributed employment data available to the
public, despite suspension (but not repeal) of our reporting
requirements? If so, how prevalent is the practice? And if some, but
not all, stations are releasing such information to the public, how
should that impact our consideration of the issue of confidentiality?
17. To the extent that broadcasters are concerned that the
Commission or the public might use employment data against stations as
a basis for audits or to file petitions to deny, should the Commission
take any additional steps to ensure that the employment data it is
required to collect will be used only for its stated purposes (i.e.,
analyzing industry trends and making reports to Congress)? Are there
other appropriate purposes aside from official Commission actions that
we should consider? What are the public interest benefits of making the
information publicly available? What impact, if any, should the
requirement in the Act that MVPDs make their employment reports
``available for public inspection'' at their facilities have on our
consideration of whether broadcasters must also make their employment
data available for public inspection?
18. Recognizing that these data have historically been made
publicly available on a station-attributed basis, we seek comment on
the benefits of continuing to do so. In particular, we ask commenters
about specific circumstances in which public availability of Form 395-B
would be beneficial to the public interest or helpful to the
Commission, Congress, and industry observers. If we decide to collect
and make this data available publicly on a station-attributed basis,
how should we go about doing so? Moreover, given that the Act
explicitly requires MVPDs to make their employment reports ``available
for public inspection'' at their facilities, would it make sense for
the Commission to harmonize the treatment of employment data from
broadcasters with that of MVPDs and require Form 395-B be publicly
available? If not, what purpose would be served by treating
broadcasters and MVPDs differently for purposes of EEO data collection?
To the extent broadcasters can provide appropriate grounds for treating
Form 395-B data as confidential, we also seek comment on specific
filing approaches that would enable the Commission to collect and
maintain Form 395-B employee data confidentially. In particular, if the
Commission were to collect employment data confidentially, we seek
input on collection mechanisms that could segregate the employment data
from any station or employment unit identifying information, thereby
allowing the data to be filed on a non-station-attributable basis while
at the same time capturing whether a particular entity or station has
complied with the annual reporting requirement. For example, could the
completed Form 395-B be collected in such a way that the employment
data would be filed separately from the station/employment unit
identifying information? We note that the Commission previously had
raised concerns about a similar filing approach almost twenty years
ago, particularly with regard to FOIA and the Federal Records Act
(FRA). In that case, however, the Commission was considering an
approach where it would receive completed paper filings and then ``tear
off'' the station information from the employment data. We ask
commenters to consider whether an electronic filing approach would
raise concerns under either FOIA or the FRA if information were
collected or maintained in a separated fashion. For example, how could
the Commission ensure that the separation of station identifying
information and employment data will not prevent the identification of
employee data relating to a specific station if the Commission was
required to produce information pursuant to a FOIA request?
19. The Commission also previously expressed concerns about the
public's and its own inability to connect data with the station filing
the data, were it to adopt a completely anonymous filing methodology.
Specifically, the Commission noted that an anonymous filing approach
could impede it from contacting the licensee if there were problems
with the data. We invite comment on how we might address that concern.
Further, how would we conduct audits of compliance with the Form 395-B
annual filing requirement if Form 395-B is not filed on a station-
attributable basis? In such a case, should we require each filer to
retain a copy of their filings in order to present them to Commission
staff in case of an audit to verify the submission of the report and
the accuracy of the data submitted? To the extent data submitted in
response to an audit can be obtained under FOIA, does that undermine
the goal of this separation regime? Alternatively, would a
certification by the licensee, for example on the FCC Form 396-B
Broadcast Equal Employment Opportunity Program Report or the FCC Form
303-S License Renewal, attesting to the submission of the required
annual Form 395-B be sufficient for tracking compliance with the annual
filing of a Form 395-B for a particular station?
20. We also seek comment on any implementation issues that might
arise from either an approach in which the Form 395-B is filed and
maintained completely anonymously, or where station-specific
information is available to the Commission but not the public. What
technical issues, from both the station and the Commission perspective,
would need to be addressed to ensure that the employment data cannot in
any way be linked to the individual licensee who filed the data, by
either Commission staff or others? We also welcome any examples of
similar filing approaches that have been established,
[[Page 48614]]
either in the private or public sector, and the benefits or drawbacks
of using such systems.
21. We further invite comment on whether any potential changes to
the collection of this information or Form 395-B would be consistent
with the directive in section 334(a) of the Act, which states that the
Commission ``shall not revise . . . the regulations concerning equal
employment opportunity as in effect on September 1, 1992 (47 CFR
73.2080)'' as they pertain to TV stations or the ``forms used by such
licensees to report pertinent employment data.'' What impact does this
statutory language have on potential revisions to Form 395-B, including
on the ability of the Commission to modify the Form's public filing
requirements? To the extent commenters believe that the language of
section 334(a) allows for some changes in the format of the Form 395-B
or the manner in which the employment data is collected as applied to
broadcast licensees, please specify.
22. Additionally, we seek comment on how we should interpret the
phrase ``pertinent employment data'' as used in section 334(a)(2).
Should the term ``pertinent employment data'' be read in context as
data related to administration and enforcement of the EEO regulations,
considering that section 334(a)(1) codified ``the regulations
concerning equal employment opportunity as in effect on September 1,
1992''? The Commission no longer uses station-specific employment data
to screen licensee renewal applications or assess any aspect of a
broadcaster's compliance with the Commission's EEO rules as a result of
the D.C. Circuit's decisions. To what extent is station-specific data
necessary to carry out our statutory and regulatory obligations,
including to monitor industry employment trends and report to Congress.
How can the Commission continue to meet these obligations to collect
EEO data from broadcast station licensees and permittees without
requiring station-specific data? Is station-specific data no longer
``pertinent'' employment data within the meaning of section 334(a)(2)
because the data are no longer used to screen licensee renewal
applications or assess EEO compliance, thereby allowing us to revise
the forms to accommodate the filing of information on a non-station-
specific basis? Does the permission granted to the Commission in
section 334(c) to make technical revisions to ``the regulations
described in subsection (a)'' provide sufficient authority to revise
the Form 395-B or the filing procedures? In particular, section 334(c)
contemplates that the Commission may make ``nonsubstantive technical or
clerical revisions in such regulations,'' but says nothing about FCC
forms. Assuming the authority in subsection (c) extends to Form 395-B,
would the revisions contemplated constitute ``nonsubstantive technical
or clerical revisions'' and would they be necessary ``to reflect
changes in technology, terminology, or Commission organization''? If
not, what impact would this have on the Commission's ability to make
changes to the Form 395-B and the collection of the relevant employment
data? In addition, the Commission previously noted that it could be
``called upon to provide trend data based on markets, size of stations,
services, or other criteria'' that could not be reconstructed from data
submitted on a non-station-attributable basis. Would the collection of
other types of information from filers lead to a more useful data set
and enable meaningful tracking of industry trends?
23. In the Third Report and Order, the Commission noted that it had
previously sought to track the racial classification standards employed
by the Equal Employment Opportunity Commission (EEOC), which in turn
applies the classifications established by the Office of Management and
Budget (OMB). Given the passage of time, it is possible that the racial
classifications reflected on the FCC Form 395-B are no longer entirely
consistent with the classifications employed by the current EEO-1 form.
Accordingly, we seek comment on the desirability of harmonizing the
racial classifications employed on the Form 395-B with the EEOC's
current EEO-1 form, and any related issues. In addition, although we
note that the Commission has made such changes to the Form 395-B in the
past, consistent with the discussion above, we seek comment on whether
the form can be revised to reflect any updated racial classifications
consistent with section 334 of the Act. We note that although the
filing of the Form 395-B has been suspended since 2001, OMB has
approved the information collection through June 2023, subject to the
Commission's decision resolving the data confidentiality issues. OMB
Control Number History, OMB Control Number: 3060-0390, <a href="https://www.reginfo.gov/public/do/PRAViewICR?ref_nbr=202004-3060-047">https://www.reginfo.gov/public/do/PRAViewICR?ref_nbr=202004-3060-047</a> (last
visited Feb. 16, 2021). Thus, the Commission must consult further with
OMB prior to re-implementing the data collection.
24. As part of refreshing the record, we also seek comment on
whether the Form 395-B data could be collected pursuant to the CIPSEA
under a pledge of confidentiality. While the Commission previously
sought comment on the applicability of CIPSEA in 2004, at that time the
statute was barely two years old. Given the passage of time and our
desire to obtain as complete a record as possible, we seek comment anew
on the applicability of CIPSEA. Could the Commission or one of its
subordinate offices or bureaus qualify as a federal ``statistical
agency or unit'' as defined in CIPSEA and in accordance with the
various directives issued by the Office of Management and Budget over
the years? To the extent the Commission, as a non-statistical agency,
could avail itself of CIPSEA's provision protecting data from public
disclosure, we note CIPSEA imposes various limitations and requirements
on the confidential collection of data by a non-statistical agency that
could significantly impede the Commission's ability to collect and use
the data, including the requirement for direct acquisition of data by
Commission employees without the use of contractors. Because the
Commission relies on information technology contractors to assist
filers with questions and to compile reports and other information
based on data in its forms, we question whether the Commission can
comply with this requirement. We seek comment on these issues.
25. Moreover, we note that, in the intervening years since the Form
395-B was suspended, additional regulations or guidance may have arisen
that could affect our analysis and the restoration of this data
collection. In particular, we note that the Foundations for Evidence
Based Policymaking Act of 2018 (Evidence Act) would appear to require
that the Commission publish data it collects in an open format if the
data collection mechanism [is] created on or after January 14, 2019,
the Act's date of enactment, and absent a statutory exemption
prohibiting the disclosure of the information. Accordingly, we seek
comment on whether this recently enacted statute would require the
publication of employment data collected on Form 395-B. If the
Commission were to reinstate the Form 395-B data collection, with or
without modifications to the form or filing system, would this
constitute a new data collection mechanism subject to the Evidence Act?
And if so, would any existing FOIA exemptions apply to this data
collection? We seek comment on the applicability of FOIA exemptions in
general, including any recent developments in FOIA case law applicable
to Form 395-B data.
26. Finally, given the significant passage of time since the FCC
Form
[[Page 48615]]
395-B filing requirement was suspended, are there any other issues or
developments that we should consider at this time? We also seek comment
on the attendant costs and benefits of any proposals advanced in
response to this item.
Procedural Matters
27. Ex Parte Rules--Permit-But-Disclose. This proceeding shall be
treated as a ``permit-but-disclose'' proceeding in accordance with the
Commission's ex parte rules. Persons making ex parte presentations must
file a copy of any written presentation or a memorandum summarizing any
oral presentation within two business days after the presentation
(unless a different deadline applicable to the Sunshine period
applies). Persons making oral ex parte presentations are reminded that
memoranda summarizing the presentation must (1) list all persons
attending or otherwise participating in the meeting at which the ex
parte presentation was made, and (2) summarize all data presented and
arguments made during the presentation. If the presentation consisted
in whole or in part of the presentation of data or arguments already
reflected in the presenter's written comments, memoranda, or other
filings in the proceeding, the presenter may provide citations to such
data or arguments in his or her prior comments, memoranda, or other
filings (specifying the relevant page and/or paragraph numbers where
such data or arguments can be found) in lieu of summarizing them in the
memorandum. Documents shown or given to Commission staff during ex
parte meetings are deemed to be written ex parte presentations and must
be filed consistent with rule 1.1206(b). In proceedings governed by
rule 1.49(f) or for which the Commission has made available a method of
electronic filing, written ex parte presentations and memoranda
summarizing oral ex parte presentations, and all attachments thereto,
must be filed through the electronic comment filing system available
for that proceeding, and must be filed in their native format (e.g.,
.doc, .xml, .ppt, searchable .pdf). Participants in this proceeding
should familiarize themselves with the Commission's ex parte rules.
28. Initial Regulatory Flexibility Act Analysis. The Regulatory
Flexibility Act of 1980, as amended (RFA), requires that a regulatory
flexibility analysis be prepared for notice and comment rulemaking
proceedings, unless the agency certifies that ``the rule will not, if
promulgated, have a significant economic impact on a substantial number
of small entities.'' The RFA generally defines the term ``small
entity'' as having the same meaning as the terms ``small business,''
``small organization,'' and ``small governmental jurisdiction.'' In
addition, the term ``small business'' has the same meaning as the term
``small business concern'' under the Small Business Act. A ``small
business concern'' is one which: (1) Is independently owned and
operated; (2) is not dominant in its field of operation; and (3)
satisfies any additional criteria established by the Small Business
Administration (SBA).
29. With respect to this FNPRM, an Initial Regulatory Flexibility
Analysis (FRFA) under the RFA appears below. Written public comments
are requested on the IFRA and must be filed in accordance with the same
filing deadlines as comments on this Notice of Proposed Rulemaking,
with a distinct heading designating them as responses to the IRFA. In
addition, a copy of this FNPRM and the IRFA will be sent to the Chief
Counsel for Advocacy of the SBA and will be published in the Federal
Register.
30. Paperwork Reduction Act. This document seeks comment on whether
the Commission should adopt modified information collection
requirements. The Commission, as part of its continuing effort to
reduce paperwork burdens and pursuant to the Paperwork Reduction Act of
1995, Public Law 104-13, invites the general public and the Office of
Management and Budget (OMB) to comment on these information collection
requirements. In addition, pursuant to the Small Business Paperwork
Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4), we
seek specific comment on how we might further reduce the information
collection burden for small business concerns with fewer than 25
employees.
Initial Regulatory Flexibility Act Analysis
31. As required by the Regulatory Flexibility Act of 1980, as
amended (RFA), the Commission has prepared this Initial Regulatory
Flexibility Analysis (IRFA) of the possible significant economic impact
on small entities of the policies and rules proposed in this Further
Notice of Proposed Rulemaking (FNPRM). The Commission requests written
public comments on this IRFA. Comments must be identified as responses
to the IRFA and must be filed by the deadlines for comments specified
in the Further Notice. The Commission will send a copy of the Further
Notice, including this IRFA, to the Chief Counsel for Advocacy of the
Small Business Administration (SBA). In addition, the Further Notice
and IRFA (or summaries thereof) will be published in the Federal
Register.
A. Need for, and Objectives of, the Proposed Rules
32. The FNPRM seeks to refresh the record regarding the
Commission's annual collection of broadcaster workforce composition
data by race and gender on FCC Form 395-B. (Form 395-B, the broadcast
station Annual Employment Report, can be found at <a href="https://transition.fcc.gov/Forms/Form395B/395b.pdf">https://transition.fcc.gov/Forms/Form395B/395b.pdf</a>.) The filing of this Form
was suspended in 2001 in the wake of a D.C. Circuit decision vacating
certain aspects of the Commission's Equal Employment Opportunity
requirements. While the Commission adopted revised regulations
regarding its data collection to prevent use of the data in assessing
compliance with its general EEO rules and possibly exerting pressure on
broadcasters to hire women and minorities, and subsequently obtained
OMB approval for collecting data on updated Form 395-B, collection of
the data was delayed until issues regarding confidentiality of the data
were resolved. To date, those issues remain unresolved. Accordingly,
the FNPRM seeks to refresh the record regarding the collection of
broadcaster workforce composition data, and asks for further input on
the legal, logistical, and technical issues surrounding FCC Form 395-B.
33. Specifically, the FNPRM seeks to refresh the record with
additional input on the outstanding issue of whether employee data
reported by broadcasters can or should be kept confidential and/or on a
non-attributable basis, or whether there are benefits from disclosure.
Among other issues, the FNPRM asks whether there have been relevant
developments in the public disclosure of employment data since the
Commission last sought comment on collecting these data, including
whether broadcast licensees now make station-attributed employment data
available to the public, how prevalent this practice may be, and how
such practices should impact our consideration of the issue of
confidentiality.
34. The FNPRM asks, to the extent that broadcasters are concerned
that the Commission or the public might use employment data against
stations as a basis for audits or to file petitions to deny license
applications, whether it should take any additional steps to ensure
that the employment data it is required to collect will be used only
for their stated purposes (i.e., analyzing
[[Page 48616]]
industry trends and making reports to Congress)? The FNPRM asks whether
there are other appropriate purposes of collecting data aside from
official Commission actions that it should consider, and what public
benefits derive from making the information publicly available. The
FNPRM also asks what impact the Act's requirement that MVPDs make their
employment reports ``available for public inspection'' at their
facilities have on its consideration of whether broadcasters must also
make their employment data available for public inspection.
35. Recognizing that these data have historically been made
publicly available on a station-attributed basis, the FNPRM seeks
comment on the benefits of continuing to do so. The FNPRM asks
commenters to describe circumstances in which public availability of
Form 395-B would be beneficial to the public interest or helpful to the
Commission, Congress, and industry observers. The FNPRM asks how the
Commission should go about making data publicly available on a station-
attributed basis if it decides to continue doing so. To the extent
broadcasters can provide appropriate grounds for treating Form 395-B
data as confidential, the FNPRM seeks comment on specific filing
approaches that would enable the Commission to collect and maintain
Form 395-B employee data confidentially. The FNPRM asks commenters to
consider whether an electronic filing approach would raise concerns
under either FOIA or the Federal Records Act (FRA) if information were
collected or maintained in a separated fashion.
36. The FNPRM invites comment on how the Commission might address
any concerns that an anonymous filing approach could impede it from
contacting the licensee if there were problems with the data or from
conducting compliance audits. The FNPRM also seeks comment on any
implementation issues that might arise from either an approach in which
the Form 395-B is filed and maintained completely anonymously, or where
station-specific information is available to the Commission but not the
public.
37. The FNPRM also invites comment on whether any potential changes
to the collection of this information or Form 395-B would be consistent
with the directive in section 334(a) of the Act, which states that the
Commission ``shall not revise . . . the regulations concerning equal
employment opportunity as in effect on September 1, 1992 (47 CFR
73.2080)'' as they pertain to TV stations or the ``forms used by such
licensees to report pertinent employment data.'' As part of refreshing
the record, the FNPRM asks whether the Commission or one of its
subordinate offices or bureaus qualify as a federal ``statistical
agency or unit'' as defined in CIPSEA and in accordance with the
various directives issued by the Office of Management and Budget since
passage of CIPSEA in 2002. The FNPRM also seeks comment on whether the
Foundations for Evidence-Based Policymaking Act would require the
publication of employment data collected on Form 395-B. Finally, given
the significant passage of time since the FCC Form 395-B filing
requirement was suspended, the FNPRM seeks comment on any other issues
or developments that the Commission should consider and on the
attendant costs and benefits of any proposals advanced in response to
the FNPRM.
B. Legal Basis
38. The proposed action is authorized under sections 1, 2(a), 4(i),
4(j), 4(k), 303, 334, and 403 of the Communications Act of 1934, as
amended, 47 U.S.C. 151, 152(a), 154(i), 154(k) 303, 334, and 403.
C. Description and Estimate of the Number of Small Entities to Which
the Proposed Rules Will Apply
39. The RFA directs agencies to provide a description of, and where
feasible, an estimate of the number of small entities that may be
affected by the proposed rule revisions, if adopted. The RFA generally
defines the term ``small entity'' as having the same meaning as the
terms ``small business,'' ``small organization,'' and ``small
governmental jurisdiction.'' In addition, the term ``small business''
has the same meaning as the term ``small business concern'' under the
Small Business Act (SBA). 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. Below, we provide a description of such small entities, as well as
an estimate of the number of such small entities, where feasible.
40. Television Broadcasting. This U.S. Economic Census category
``comprises establishments primarily engaged in broadcasting images
together with sound.'' These establishments operate television
broadcast studios and facilities for the programming and transmission
of programs to the public. These establishments also produce or
transmit visual programming to affiliated broadcast television
stations, which in turn broadcast the programs to the public on a
predetermined schedule. Programming may originate in their own studio,
from an affiliated network, or from external sources. The SBA has
created the following small business size standard for such businesses:
Those having $41.5 million or less in annual receipts. The 2012
Economic Census reports that 751 firms in this category operated in
that year. Of that number, 656 had annual receipts of $25 million or
less, 25 had annual receipts between $25 million and $49,999,999 and 70
had annual receipts of $50 million or more. Based on these data, we
estimate that the majority of commercial television broadcast stations
are small entities under the applicable size standard.
41. Additionally, the Commission has estimated the number of
licensed commercial television stations to be 1,371. Of this total,
1,265 stations (or 92%) had revenues of $41.5 million or less in 2020,
according to Commission staff review of the BIA Kelsey Inc. Media
Access Pro Television Database (BIA) on February 9, 2021, and therefore
these stations qualify as small entities under the SBA definition. In
addition, the Commission estimates the number of noncommercial
educational stations to be 388. The Commission does not compile and
does not have access to information on the revenue of NCE stations that
would permit it to determine how many such stations would qualify as
small entities. There are also 388 Class A stations. Given the nature
of this service, the Commission presumes that all of these stations
qualify as small entities under the applicable SBA size standard.
42. Radio Stations. This U.S. Economic Census category ``comprises
establishments primarily engaged in broadcasting aural programs by
radio to the public.'' Programming may originate in the establishment's
own studio, from an affiliated network, or from external sources. The
SBA has created the following small business size standard for such
businesses: Those having $41.5 million or less in annual receipts.
Economic Census data for 2012 show that 2,849 firms in this category
operated in that year. Of that number, 2,806 operated with annual
receipts of less than $25 million per year, 17 with annual receipts
between $25 million and $49,999,999 million and 26 with annual receipts
of $50 million or more. Based on these data, we estimate that the
majority of commercial radio broadcast stations were small under the
applicable SBA size standard.
43. The Commission has estimated the number of licensed commercial
AM radio stations to be 4,551 and the number of commercial FM radio
stations to be 6699 for a total of 11,250
[[Page 48617]]
commercial stations. Of this total, 11,245 stations (or 99%) had
revenues of $41.5 million or less in 2020, according to Commission
staff review of the BIA Kelsey Inc. Media Access Pro Television
Database (BIA) on February 9, 2021, and therefore these stations
qualify as small entities under the SBA definition. In addition, there
were 4195 noncommercial educational FM stations. The Commission does
not compile and does not have access to information on the revenue of
NCE radio stations that would permit it to determine how many such
stations would qualify as small entities.
44. In assessing whether a business concern qualifies as small
under the above definition, business (control) affiliations must be
included. Our estimate, therefore, likely overstates the number of
small entities that might be affected by our action because the revenue
figure on which it is based does not include or aggregate revenues from
affiliated companies. In addition, 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
estimate of small businesses to which the proposed rules may apply does
not exclude any radio or television station from the definition of
small business on this basis and is therefore possibly over-inclusive.
D. Description of Projected Reporting, Recordkeeping, and Other
Compliance Requirements
45. In this section, we identify the reporting, recordkeeping and
other compliance requirements contained in the FNPRM and consider
whether small entities are affected disproportionately by any such
requirements. The FNPRM proposes no new reporting, recordkeeping or
compliance requirements, only seeks to refresh the record on resuming,
after a suspension, collection of broadcaster workforce composition
data on FCC Form 395-B. The FNPRM also seeks to refresh the record to
resolve an issue outstanding since 2004 on whether the Commission can
or should change its handling of the data to keep it confidential. The
FNPRM also asks whether and how more recently enacted statutes affect
its handling of broadcaster employee composition data. If the FNPRM is
adopted, broadcasters will simply resume filing Form 395-B and the FCC
may change the way it handles data contained in Form 395-B. Because the
FNPRM contains no new reporting or recordkeeping obligations and
proposes only resuming filing of an existing Form, the reporting,
recordkeeping and other compliance requirements of small entities will
not change from such requirements under existing rules, and the burden
imposed by the FNPRM will be no greater than under current rules.
Additionally, stations with four or less full-time employees are exempt
from filing the report. Therefore, because no new requirements are
imposed and small stations are exempt, the Commission concludes that
small entities will not be disproportionately affected by the FNPRM.
E. Steps Taken To Minimize Significant Economic Impact on Small
Entities, and Significant Alternatives Considered
46. 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.
47. This FNPRM seeks to refresh the record regarding the
Commission's annual collection of broadcaster workforce composition
data by race and gender on FCC Form 395-B. It would lead only to
resumption of this data collection and would impose no new requirements
for which the Commission can consider alternatives that would minimize
the economic burden on small entities. Further, as detailed in the
FNPRM, section 334(a) of the Act states that the Commission shall not
revise either the EEO regulations in effect as of September 1992 as
such regulations apply to television broadcast station licensees or
permittees or the ``forms used by such licensees to report pertinent
employment data.''
F. Federal Rules That May Duplicate, Overlap, or Conflict With the
FNPRM
48. None.
Ordering Clauses
49. Accordingly, it is ordered that, pursuant to the authority
found in sections 1, 4(i), 4(j), 4(k), 303, 334, and 403 of the
Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i), 154(j),
154(k), 303, 334, and 403, this Further Notice of Proposed Rulemaking
is adopted.
50. It is further ordered that the Commission's Consumer and
Governmental Affairs Bureau, Reference Information Center, shall send a
copy of this Notice of Proposed Rulemaking, including the Initial
Regulatory Flexibility Act Analysis, to the Chief Counsel for Advocacy
of the Small Business Administration.
Federal Communications Commission.
Marlene Dortch,
Secretary.
[FR Doc. 2021-18665 Filed 8-30-21; 8:45 am]
BILLING CODE 6712-01-P
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This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.