Rule2024-09468
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
May 3, 2024
Effective
June 3, 2024
Issuing agencies
Federal Communications Commission
Abstract
In this document, the Federal Communications Commission (Commission) adopted a Fourth Report and Order and Order on Reconsideration that reinstitutes the collection of workforce composition data for television and radio broadcasters on FCC Form 395- B, as statutorily required.
Full Text
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[Federal Register Volume 89, Number 87 (Friday, May 3, 2024)]
[Rules and Regulations]
[Pages 36705-36718]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-09468]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 73
[MB Docket No. 98-204; FCC 24-18; FR ID 216196]
Review of the Commission's Broadcast and Cable Equal Employment
Opportunity Rules and Policies
AGENCY: Federal Communications Commission.
ACTION: Final rule.
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SUMMARY: In this document, the Federal Communications Commission
(Commission) adopted a Fourth Report and Order and Order on
Reconsideration that reinstitutes the collection of workforce
composition data for television and radio broadcasters on FCC Form 395-
B, as statutorily required.
DATES: This rule is effective June 3, 2024.
FOR FURTHER INFORMATION CONTACT: For additional information on this
proceeding, please contact Radhika Karmarkar of the Media Bureau,
Industry Analysis Division, <a href="/cdn-cgi/l/email-protection#9bc9fafff3f2f0fab5f0fae9f6fae9f0fae9dbfdf8f8b5fcf4ed"><span class="__cf_email__" data-cfemail="da88bbbeb2b3b1bbf4b1bba8b7bba8b1bba89abcb9b9f4bdb5ac">[email protected]</span></a>, (202) 418-1523.
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Fourth
Report and Order and Order on Reconsideration (``Fourth Report and
Order'' and ``Order on Reconsideration''), FCC 24-18, in MB Docket No.
98-204, adopted on February 7, 2024, and released on February 22, 2024.
The complete text of this document is available electronically via the
search function on the FCC's website at <a href="https://docs.fcc.gov/public/attachments/FCC-24-18A1.pdf">https://docs.fcc.gov/public/attachments/FCC-24-18A1.pdf</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#e2848181d7d2d6a2848181cc858d94"><span class="__cf_email__" data-cfemail="a0c6c3c3959094e0c6c3c38ec7cfd6">[email protected]</span></a> (mail to:
<a href="/cdn-cgi/l/email-protection#90f6f3f3a5a0a4d0f6f3f3bef7ffe6"><span class="__cf_email__" data-cfemail="02646161373236426461612c656d74">[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. By this Fourth Report and Order and Order on Reconsideration, we
reinstate the collection of workforce composition data for television
and radio broadcasters on FCC Form 395-B as statutorily required by the
Communications Act of 1934, as amended (Act). The Commission suspended
its requirement that broadcast licensees file Form 395-B, which
collects race, ethnicity, and gender information about a broadcaster's
employees within specified job categories, more than two decades ago.
After a long period of inactivity, the Commission published in the
Federal Register on August 31, 2021, at 86 FR 48610, a Further Notice
of Proposed Rulemaking(MB Docket No. 98-204, FCC 21-88, 36 FCC Rcd
12055) (FNPRM), seeking to refresh the public record regarding the
manner in which the Form 395-B data should be collected and maintained.
After careful consideration of the record, we reaffirm the Commission's
authority to collect this critical information and conclude that
broadcasters should resume filing Form 395-B on an annual basis.
Section 73.3612 of the Commission's rules provides that ``[e]ach
licensee or permittee of a commercially or noncommercially operated AM,
FM, TV, Class A TV or International Broadcast station with five or more
full-time employees shall file an annual employment report with the FCC
on or before September 30 of each year on FCC Form 395-B.'' We note
that the filing requirements of Sec. 73.3612 do not apply to Low Power
FM Stations. Given the importance of this workforce information and
Congress's expectation that such information would be collected and
available, we reinstate this collection in a manner available to the
public consistent with the Commission's previous, long-standing method
of collecting this data.
2. Our ability to collect and access Form 395-B data is critical
because it will allow for analysis and understanding of the broadcast
industry workforce, as well as the preparation of reports to Congress
about the same. Collection, analysis, and availability of this
information will support greater understanding of this important
industry. We agree with broadcasters and other stakeholders that
workforce diversity is critical to the ability of broadcast stations
both to compete with one another and to effectively serve local
communities across the country. Without objective and industry-wide
data, it is impossible to assess changes, trends, or progress in the
industry. Consistent with how these data have been collected
historically, we will make broadcasters' Form 395-B filings available
to the public because we
[[Page 36706]]
conclude that doing so will ensure maximum accuracy of the submitted
data, is consistent with Congress's goal to maximize the utility of the
data an agency collects for the benefit of the public, allows us to
produce the most useful reports possible for the benefit of Congress
and the public, and allows for third-party testing of the accuracy of
our data analyses. Thus, with today's action, we restore the process of
giving broadcasters, Congress, and ourselves the data needed to better
understand the workforce composition in the broadcast sector. We find
further that continuing to collect this information in a transparent
manner is consistent with a broader shift towards greater openness
regarding diversity, equity, and inclusion across both corporate
America and government. Large media companies have begun to make
publicly available copies of their EEO-1 forms, which are filed with
the Equal Employment and Opportunity Commission, or variations thereof.
There is also movement towards more open access to data collected by
federal agencies, as shown in the Foundations for Evidence Based
Policymaking Act, which directs agencies to account for their data
collections and to make such data available in readable formats to
support government transparency and evidence-based rulemaking. We also
address a pending petition for reconsideration from 2004 regarding our
use of Form 395-B data.
Background
3. For more than 50 years, the Commission has administered
regulations governing the EEO responsibilities of broadcast licensees.
At their core, the Commission's EEO rules prohibit employment
discrimination on the basis of race, color, religion, national origin,
or sex, and require broadcasters to provide equal employment
opportunities. In addition to broadly prohibiting employment
discrimination, the Commission's rules also require that all but the
smallest of broadcast licensees develop and maintain an EEO program.
Specifically, the Commission requires each broadcast station that is
part of an employment unit of five or more full-time employees to
establish, maintain, and carry out a positive continuing program to
ensure equal opportunity and nondiscrimination in employment policies
and practices. In addition, the Commission historically collected
workforce employment data from broadcasters through the annual
submission of Form 395-B.
4. Between 1970 and 1992, the Commission, pursuant to its public
interest authority, required broadcasters to submit annual employment
reports listing the composition of the broadcasters' workforce in terms
of race, ethnicity, and gender. In 1992, 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 amended the
Act, affirming the Commission's authority in this area. Specifically,
Congress added a new section 334, which required the Commission to
maintain its existing EEO regulations and forms as applied to
television stations. The forms included the Commission's collection of
workforce diversity information from broadcasters on Form 395-B.
Submission of Form 395-B, however, was subsequently suspended in 2001
following two decisions by the U.S. Court of Appeals for the District
of Columbia Circuit (D.C. Circuit) vacating certain aspects of the
Commission's EEO rules.
5. With its decision in 1998, the D.C. Circuit in Lutheran Church-
Missouri Synod v. FCC (Lutheran Church) reversed and remanded a
Commission action finding that a broadcast licensee had failed to make
adequate efforts to recruit minorities. The court found the
Commission's EEO outreach rules, which required comparison of the race
and sex of a station's full-time employees with the overall
availability of minorities and women in the relevant labor force, to be
unconstitutional. Specifically, the court concluded that the use of
broadcaster employee data to assess EEO compliance in the context of a
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. The court
applied strict constitutional scrutiny in reaching its decision,
finding that standard of review was applicable to racial
classifications imposed by the federal government. And pursuant to that
standard, it determined that the Commission's stated purpose of
furthering programming diversity was not compelling, nor were its EEO
rules narrowly tailored to further that interest. The court made clear,
however, that ``[i]f the regulations merely required stations to
implement racially neutral recruiting and hiring programs, the equal
protection guarantee would not be implicated.'' In reaching its
decision, the court referenced the Form 395-B only tangentially in its
analysis.
6. On remand, in the First Report and Order (MM Docket Nos. 98-204,
96-16, FCC 00-20, 15 FCC Rcd 2329) (First Report and Order) 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 annually file employment data on Form
395-B with the Commission, which it had suspended after Lutheran
Church. In adopting these revised rules and reinstating the information
collection, the Commission vowed to no longer use workforce composition
data when reviewing license renewal applications or assessing
compliance with EEO program requirements. Rather, the Commission stated
in the 2000 Reconsideration Order (MM Docket Nos. 98-204, 96-16, FCC
00-338, 15 FCC Rcd 22548) (2000 Reconsideration Order) that going
forward it would only use this information ``to monitor industry
employment trends and report to Congress,'' and not to assess any
aspect of the individual broadcast licensee's compliance with the Equal
Employment Opportunity requirements of Sec. 73.2080 of the
Commission's rules. The Commission codified that position in the
governing regulations contained in Sec. 73.3612.
7. Following adoption of the new EEO outreach rules, which offered
licensees two ``Options'' for establishing an EEO program, several
state broadcaster associations challenged the revised EEO rules. Upon
review, the D.C. Circuit in MD/DC/DE Broadcasters Associations v. FCC
(MD/DC/DE Broadcasters) found that one element of the new rule, namely
Option B, which allowed broadcasters to design their own outreach
programs but required reporting of the race and sex of each applicant,
was constitutionally invalid. The court determined that Option B
violated the equal protection component of the Due Process Clause of
the Fifth Amendment because, by examining the number of applicants and
investigating any broadcasters with ``few or no'' minority applicants,
the Commission ``pressured'' broadcasters to focus resources on
recruiting minorities. Because the court found that Option B was not
severable from Option A of the rule, it vacated the entire EEO outreach
rule.
8. Although the D.C. Circuit in MD/DC/DE Broadcasters vacated and
remanded the Commission's revised EEO outreach rules, it did not rule
on
[[Page 36707]]
the validity or constitutionality of Form 395-B. Nor did the court
specifically identify Form 395-B or the collection of workforce
diversity data as a core part of the rule at issue in its analysis. The
court's only mention of the collection of workforce data was in the
Background section of its decision. Thus, notably, in neither Lutheran
Church nor MD/DC/DE Broadcasters did the D.C. Circuit find the
collection of workforce composition data itself to be invalid on
constitutional or any other grounds. After the decision, the Commission
suspended its EEO rules in 2001, including Form 395-B, in order to
analyze the effects of MD/DC/DE Broadcasters on the Commission's rules.
9. On November 20, 2002, the Commission released its Second Report
and Order and Third NPRM (MM Docket No. 98-204, FCC 02-303, 17 FCC Rcd
24018) (Second Report and Order and Third NPRM), establishing new race-
neutral EEO rules, eliminating the Option B rule previously invalidated
by the court. The Commission's new EEO rules, which remain in place
today, were divorced from any data concerning the composition of a
broadcaster's workforce or applicant pool. The Commission 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.'' The Commission, however, deferred action on
issues relating to the annual employment report form, 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's decision in January 2001 to suspend the filing of Form
395-B remained in effect at the time of the Second Report and Order and
Third NPRM.
10. On June 4, 2004, the Commission released its Third Report and
Order and Fourth NPRM (MM Docket No. 98-204, FCC 04-103, 19 FCC Rcd
9973) (Third Report and Order and Fourth NPRM) readopting the
requirement that broadcasters file Form 395-B. In addition, the
Commission readopted the Note to Sec. 73.3612 of its rules that it had
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 compliance with the EEO rules. The Commission stated
that it did not ``believe that the filing of annual employment reports
will unconstitutionally pressure entities to adopt racial or gender
preferences in hiring,'' but it acknowledged the concerns raised by
broadcasters and sought comment on whether data reported on the Form
395-B should be kept confidential. Accordingly, while the Commission
acted at that time to adopt 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 remained suspended until the
agency further explored the issue of whether employment data could, or
should, remain confidential. Although the requirement to file the forms
on an annual basis remained suspended after 2004, the Commission
regularly sought approval from OMB for the collection of information on
Form 395-B. OMB most recently approved the information collection for
Form 395-B through August 31, 2026, pending the Commission's resolution
of whether the data will be confidential.
11. Given the passage of time since the Third Report and Order and
Fourth NPRM, the Commission released a FNPRM on July 26, 2021, seeking
to refresh the 2004 record with regard to Form 395-B. The FNPRM asked
for additional input on relevant developments in the law relating to
public disclosure of employment data, as well as the practical and
technical limitations associated with implementing a system that could
afford varying degrees of station-level anonymity. Interested parties
filed comments, including public interest organizations and
representatives of the broadcast industry. Their arguments range from
asking that Form 395-B data be made publicly available to contending
that reinstating the form would amount to an unconstitutional violation
of race-based protections. Many of these assertions largely reiterate
arguments addressed in the Commission's earlier orders, including
whether the filing requirement constitutes unconstitutional pressure,
the ramifications of the D.C. Circuit rulings, the directives of
section 334, and the potential substitutability of the Equal Employment
Opportunity Commission's (EEOC) EEO-1 form.
Discussion
12. Consistent with the Commission's authority pursuant to section
334, as well as the public interest provisions of the Act, we reinstate
the collection of FCC Form 395-B. In doing so, we affirm the
Commission's prior determination that the earlier court decisions in no
way invalidated our authority to collect this data, which remains
critical for analyzing industry trends and making reports to Congress.
Further, we find that reinstatement of this information collection on a
publicly available basis is consistent with the protections afforded to
broadcasters by the Constitution and relevant case law, as detailed
further below. The clear separation of this information collection from
the Commission's long-standing EEO program requirements mitigates any
concerns that might be raised by the broadcasters as to the collection
of this workforce data. In addition, the Commission's unequivocal
statement that it will not use station-specific employment data for the
purpose of assessing a licensee's compliance with the EEO regulations
and the codification of that same stricture further underscore the
dissociation between the EEO requirements and the form's data.
B. Reinstatement of the Form 395-B Collection
13. The Commission has a public interest in collecting Form 395-B
in order to report on and analyze employment trends in the broadcast
sector and also to compare trends across other sectors regulated by the
Commission. In taking this action today, we note that Congress has long
authorized the Commission to collect this data and that the Commission
is uniquely positioned to undertake such a collection. While commenters
have evinced an interest in improving the level of diversity in the
broadcasting industry workforce, the lack of industry-wide employment
data over the last 22 years makes it difficult to measure the extent of
any such progress. While we do not anticipate that this more than two-
decade long gap in data can ever be filled, with the reinstatement of
this information collection the Commission can ensure that the lack of
data persists no further, thereby providing it, the industry, Congress,
and the public with a better understanding of, or insight into, the
full scope of the broadcast industry workforce. Accordingly, in this
Order, we reinstate collection of Form 395-B in the manner described
below and require the form to be submitted in an electronic format.
Once submitted, the form will be accessible to the public via the
Commission's website.
14. Reinstating the collection of the Form 395-B data in a publicly
available format, as they were collected prior to 2001, remains the
best approach for achieving our ultimate goal of preparing meaningful
and accurate analyses of workforce trends in the broadcast industry.
First, public disclosure will increase the likelihood that erroneous
data will be discovered and corrected,
[[Page 36708]]
and it will incentivize stations to file accurate data to avoid third-
party claims that submitted data is incorrect. Whether intentionally or
inadvertently, a station might misreport its data or misidentify the
racial, ethnic, or gender group for particular employees. Individuals
or entities with a connection to the station will be in a position to
correct such errors if the data are made public. Second, making the
Form 395-B data publicly available is consistent with Congress's goal
to maximize the utility of the data an agency collects for the benefit
of the public. Third, making the data public bolsters our ability to
conduct analyses of trends across different communications sectors,
within individual sectors, and by region or market, without being
unnecessarily hampered by concerns about inadvertent disclosures of
identifiable information. We believe the utility of our reports is
greatly enhanced by our ability to ``slice, dice, and display''
granular data about the broadcast sector. Our ability to produce the
most meaningful reports possible for Congress rests, in turn, on the
ability to produce the most granular reports possible (e.g., the number
of employees in a particular demographic group in a specific job
category among a certain class of stations [AM, FM, TV, etc.] in a
specific geographic area). If we were required, however, to keep
confidential the underlying station-specific data, we would feel
compelled to report our findings at a more general, and thus less
useful, level to avoid the risk of inadvertently facilitating any
reverse engineering of station-specific information. This problem would
be especially acute in smaller markets, where the identity of stations
could be discerned more easily.
15. In addition, allowing public access to datasets allows others
to review the accuracy of an agency's data analyses and to question its
methods for data collection with the benefit of actual datasets. We
find this level of transparency to be consistent with the overall trend
toward making government data more accessible, and we note that many
government agencies collect and publish demographic data as part of
their analysis of markets, trends, and other factors. The FNPRM sought
comment on the logistics associated with collecting and maintaining the
Form 395-B data completely anonymously, or where station specific
information is available to the Commission, but not to the public. Only
one commenter addressed this issue by stating that the Commission's
Licensing and Management System (LMS) enables the shielding of certain
exhibits attached forms. Irrespective of whether LMS can shield
station-attributable data, we conclude for the reasons stated above
that maintaining this data in a publicly available format is the most
appropriate policy.
16. While broadcasters have expressed concerns with how the form's
data might be used if publicly disclosed, such concerns have been
addressed by the Commission's repeated statements on the appropriate
use of such data and its amendment of the rules to prohibit use of the
data to assess a broadcaster's compliance with Commission EEO rules.
Notwithstanding the Commission's statements and actions, broadcasters
were troubled in 2004 by comments made at that time positing that
public disclosure of employment data would enable ``citizens . . . to
work closely with their local broadcaster to ensure that stations are
meeting their needs and to resolve any problems with the companies in
their communities.'' Broadcasters pointed to those comments as evidence
that third parties would misuse Form 395-B data to pressure stations to
engage in preferential hiring practices. As an initial matter, as the
Commission has committed to previously and we reiterate here again, we
will quickly and summarily dismiss any petition, complaint, or other
filing submitted by a third party to the Commission based on Form 395-B
employment data. We also note that any attempt by a non-governmental
third party to use the publicly available Form 395-B data to pressure
stations in a non-governmental forum would not implicate any
constitutional rights of the station. In any event, we find such
concerns to be speculative. Despite the public availability of Form
395-B data for more than 20 years prior to 2001, the record contains no
evidence of use of such data in this manner. Nonetheless, we encourage
broadcasters to bring to the Commission's attention any evidence that a
third party has misused or attempted to misuse Form 395-B employment
data. If evidence of such misuse of the data emerges, the Commission
can reconsider its approach to collection of the Form 395-B data. Based
on the record before us, we find no basis to conclude that the
demographic data on a station's annual Form 395-B filing would lead to
undue public pressure. We find broadcasters' concerns with the public
collection and availability of this workforce data to be overstated,
outweighed by the promotion of data accuracy and other benefits of
public disclosure noted above, and therefore not an impediment to our
reinstatement of this collection.
17. Consistent with the limitations placed on our use of the Form
395-B data, we reject the commenter recommendation that the Enforcement
Bureau use the data as evidence when investigating a discrimination
claim against a station. We find that such use does not comport with
the Commission's public interest goal behind collection of this data.
The Commission has stated previously in the 2000 Reconsideration Order,
and we reiterate here, that ``we will summarily dismiss any petition
filed by a third party based on Form 395-B employment data'' and ``will
not use this data as a basis for conducting audits or inquiries.''
18. Some commenters have raised a concern that the Commission could
decide at a later date to waive its rule regarding how the Form 395-B
data can be used. We believe that the combination of the Commission's
consistent position over two decades about how this data may be used,
the established principle that ``an agency is bound by its own
regulations,'' our rejection of a proposed contrary use, and our
determination in the attached Order on Reconsideration should assuage
concerns on this point. We will not further delay reinstatement of the
form based on unfounded conjecture about what the Commission may or may
not do in the future.
19. Further, we reject the argument that we should retain Form 395-
B data on a confidential basis given the EEOC's confidential treatment
of similar employment data collected on its EEO-1 form. Unlike the
Commission, the EEOC's authorizing statute specifically limits its
ability to make its collected data publicly available. In the Civil
Rights Act of 1964, which created the EEOC, Congress included a
provision making it unlawful for an EEOC officer or employee to
disclose such information. However, when Congress adopted section 334
in 1984, despite the fact that in the preceding 20 years Congress had
not lifted the prohibition on public disclosure by the EEOC, Congress
imposed no such limitation on publishing the broadcast workforce data
collected by the Commission. Indeed, when Congress adopted section 334
in 1984, the Commission had been collecting broadcast workforce data
and making it available publicly for decades, a practice Congress
endorsed in passing section 334 without any limitation on public
disclosure. In addition, the manner in which the two agencies may use
their data differs significantly. The
[[Page 36709]]
EEOC may use its EEO-1 data for investigatory and enforcement purposes,
but by contrast, we will not use Form 395-B data for enforcement
purposes.
20. Some commenters assert that the Commission should rely on other
data sources, including the EEO-1 form, in lieu of Form 395-B. Yet,
section 334(a) of the Act states that ``except as specifically provided
in this section, the Commission shall not revise . . . the forms used
by [television broadcast station] licensees and permittees to report
pertinent employment data to the Commission.'' Pursuant to section 334
of the Act, we may change the form's provisions only ``to make
nonsubstantive technical or clerical revisions . . . as necessary to
reflect changes in technology, terminology, or Commission
organization.'' As we discuss further below, the alternative data
sources suggested by commenters would both violate the section 334
prohibition on changes to the form and impede our general public
interest goal of providing useful reports about employment in the
broadcast sector.
21. In particular, we continue to reject the proposal, initially
made nearly two decades ago and dismissed by the Commission at that
time as being inadequate, to rely on the EEOC's EEO-1 form in lieu of
Form 395-B. We reaffirm the Commission's prior conclusion that the EEO-
1 form is not an appropriate substitute for Form 395-B, as the two
forms differ greatly in the data they collect. First, unlike the EEO-1,
Form 395-B distinguishes between full and part-time employees,
consistent with our other employment data collections, providing a more
comprehensive picture of the broadcast industry workforce. Second, and
more importantly, reliance on the EEO-1 form would significantly reduce
the amount of employment data available to the Commission as the vast
majority of broadcast licensees do not file an EEO-1 form. While the
Form 395-B collection applies to all broadcast station employment units
with five or more full-time employees, the submission of an EEO-1 form
is required only for entities with 100 or more employees. In 2004, in
response to the same proposal to substitute the EEO-1 form for Form
395-B, the Commission calculated that the EEOC data ``would not include
6,592 employment units (79%) out of a total of 8,395 units and would
exclude 136,993 full-time employees (84%) out of the 163,868 full-time
employees in broadcasting working at employment units employing five or
more full-time employees.'' Consequently, we determine that replacing
Form 395-B either partly or wholly with the EEO-1 form does not
constitute a permitted non-substantive modification of the form itself
under section 334. Nor would such a substitution meet our public
interest goal of providing a comprehensive report of employment in the
broadcast sector and comparing employment trends across our regulatees.
For the reasons provided above, we conclude that the EEO-1 form is an
unsatisfactory replacement for Form 395-B. So as to reduce filing
burdens, we also reaffirm the procedural practice of permitting
broadcasters to file only one Form 395-B for all commonly-owned
stations in the same market that share at least one employee.
22. Similarly, we find to be inapposite the suggestion to use the
Radio Television Digital News Association (RTDNA) diversity survey as a
substitute for the Form 395-B collection. As an initial matter, the
RTDNA data pertains only to TV and radio newsrooms and not to the full
spectrum of the broadcast industry workforce covered by Form 395-B.
Moreover, the RTDNA survey ultimately is based on valid responses from
those broadcasters that choose to participate in the survey, and,
hence, the pool of participants is essentially a self-selected one. By
contrast, all broadcast station employment units with five or more
full-time employees must file the Form 395-B. Consequently,
substituting Form 395-B with the RTDNA survey would be inconsistent
with the section 334 prohibition on changes and would provide a less
complete view of the broadcast sector.
23. Since we have determined that the benefits of making these
reports public outweigh the speculative harm from doing so in light of
the clear policy of the Commission about how they may and may not be
used, we see no reason to afford them confidentiality. We note,
however, that there is a question whether they would in fact warrant
confidential treatment under the Freedom of Information Act (FOIA) or
whether the Commission could satisfy the requirements of the
Confidential Information Protection and Statistical Efficiency Act of
2002 (CIPSEA). The FNPRM sought comment on the potential applicability
of the CIPSEA or the FOIA exemptions to the Form 395-B data collection.
As discussed below, the record and our own analysis demonstrate that
CIPSEA is ill-suited for an agency such as the Commission. Similarly,
the Form 395-B data does not fit neatly within FOIA Exemption 4, and in
any event Exemption 4 does not prevent the Commission from disclosing
information after an appropriate balancing of the interests.
Accordingly, for the reasons discussed below, we find neither CIPSEA
nor FOIA affords an appropriate basis to collect Form 395-B information
in a confidential manner.
1. CIPSEA Is Ill-Suited to the Commission's Collection of the Form 395-
B Data
24. The Commission sought comment on CIPSEA in 2004 and again in
2021, in particular, seeking to explore whether the confidentiality
afforded by CIPSEA to government-collected data could apply to the Form
395-B data. Commenters responding in 2004 disagreed regarding CIPSEA's
applicability. Some commenters argued that CIPSEA authorizes the
Commission to collect Form 395-B filings on a confidential basis and
that doing so would be good public policy. Other commenters contended
that neither CIPSEA nor the Communications Act permits the use of
CIPSEA for Form 395-B filings. They further argued that confidential
treatment would not serve CIPSEA's purpose of promoting public
confidence in an agency's pledge of confidentiality, given that the
Commission never made such a pledge with respect to Form 395-B, nor
would it serve important policy objectives, such as ensuring the
accuracy of Form 395-B data. When the Commission initially sought
comment in 2004, the CIPSEA statute was barely two years old and
relatively untested. Given the passage of time and the desire to obtain
as complete a record as possible, the Commission sought comment anew on
CIPSEA in 2021. The FNPRM sought input regarding the potential avenues
under CIPSEA to collect and maintain data on a confidential basis, but
the two comments in 2021 addressing CIPSEA provide insufficient
discussion or analysis. As discussed further below, we find that CIPSEA
is not an appropriate fit for the Commission's Form 395-B data
collection.
25. A commenter suggests that the Commission could utilize any one
of CIPSEA's three approaches for confidential collection and retention
of the Form 395-B data: (1) have the Commission's Office of Economics
and Analytics (OEA) seek recognition as a ``Federal statistical agency
or unit'' pursuant to CIPSEA and have OEA alone collect and analyze the
Form 395-B data, which would then be released in conformance with the
CIPSEA confidentiality protections; (2) have the Commission collect
this data independently as a ``nonstatistical agency'' or ``unit;'' or
(3) as a nonstatistical agency or unit, enter into an agreement with an
already
[[Page 36710]]
recognized ``Federal statistical agency or unit'' and have that agency
collect the data on behalf of the Commission. While the commenter
asserts that these approaches are ``reasonable mechanism[s]'' for
safeguarding Form 395-B data, it does not specify how its proposals
could be satisfied under the requirements established in OMB's 2007
Guidance. For example, the commenter does not discuss how the
Commission, or even a subpart of the Commission, could qualify as a
``statistical agency or unit'' given that OMB accords that designation
only when the predominant activities of the agency or unit are the use
of information for statistical purposes. The Commission plainly does
not fit that description. Furthermore, the commenter does not address
the costs and burdens involved with applying for and obtaining from OMB
the designation needed for CIPSEA protection. Nor does it address the
cost and burdens associated with adherence to CIPSEA and whether the
benefit of retaining the Form 395-B data in conformance with CIPSEA
outweighs these costs and burdens. Below, we address these points.
26. Contrary to the commenter's suggestion, our detailed review of
CIPSEA, OMB's 2007 Guidance, and examples of other agencies that have
obtained designation as a ``statistical agency or unit'' demonstrates
that neither the Commission nor OEA would qualify for such a
designation. An agency, or agency unit, seeking such a designation must
demonstrate to the OMB Chief Statistician that its activities are
``predominantly the collection, compilation, processing, or analysis of
information for statistical purposes.'' Although OEA conducts
significant data analyses, its activities do not meet the
``predominantly'' standard laid out by OMB. Rather, OEA's regular work
also includes administrative, regulatory, and adjudicative functions,
as well as the administration of the Commission's various spectrum
auctions. For these reasons, we determine OEA could not satisfy the
requirements for ``statistical agencies or units'' and, therefore, this
approach is not a viable option.
27. The commenter next suggests that the Commission could collect
the Form 395-B data as a ``nonstatistical agency'' pursuant to CIPSEA,
provided it complied with CIPSEA's restriction preventing
nonstatistical agencies from using ``agents,'' including contractors,
to collect or use the protected information, and if it ensured that
only internal agency staff had access to the protected information. The
commenter identifies no agency that has successfully invoked this
provision of CIPSEA in the more than 20 years since the passage of the
act. Nor have we been able to identify one. As discussed in the FNPRM,
the Commission relies extensively on information technology (IT)
contractors to develop and maintain electronic filing systems, assist
filers with questions, and compile reports and other information based
on data in Commission forms. The Commission has outsourced these tasks
for decades consistent with a broader federal government initiative to
ensure that those jobs that can be conducted in a more economically
efficient manner by the private sector through competitive bidding.
Moreover, the Commission currently relies on multiple IT contracts to
maintain and operate its systems. Therefore, it would be extremely
complex and burdensome from an administrative perspective to bring
functions in-house solely for one form. For these reasons, we find that
collecting Form 395-B data as a nonstatistical agency under CIPSEA is
not a viable option.
28. We similarly find that the final approach under CIPSEA, namely
that the Commission, acting as a ``nonstatistical agency,'' partner
with a ``statistical agency,'' which would collect the Form 395-B data
on the Commission's behalf, is not a realistic--or even workable--one.
Our detailed review of CIPSEA and OMB's 2007 Guidance shows that this
is a complex process involving various logistical steps, as well as
significant additional burdens and costs. Partnering with a
``statistical agency'' involves identifying a possible partner agency,
engaging in negotiations with that agency to establish an agreement for
the collection of the data, negotiating and drafting an agreement
stipulating the terms associated with collection, processing, and
sharing of the Form 395-B data. Any such agreement would have to
comport with OMB's requirements and might also necessitate OMB review.
The Commission would also have to compensate any such partner agency
for the costs of collecting and storing the data, educate the partner
agency about the broadcast sector, and ensure that the information is
collected in an appropriate manner. Under this approach, the Commission
also would have to designate specific staff who would have permission
to access the data and potentially restrict access to just those
individuals. Moreover, broadcasters would have the additional burden of
familiarizing themselves with a different agency's document filing
system. As OMB has not yet issued guidance on such a partnership
approach, however, the potential logistical problems going forward are
not even fully known. In addition, pursuing the approach of partnering
with a ``statistical agency'' would lead to further delay in
reinstituting this collection, which has already lagged for far too
long, while also unduly increasing the complexity and cost of the
collection. Going forward, such an approach would lend complexity to
the process and potentially hamper the Commission's ability to review,
analyze, and report on the underlying data on an ongoing basis.
Consequently, we conclude that the significant time, complexity, and
cost associated with formulating a partnership with a statistical
agency outweigh any speculative harm that might arise from public
availability of this data.
2. Even if FOIA Exemption 4 Applies, the Strong Public Interest in
Disclosure Outweighs Any Private Interest In Confidential Treatment
29. The FNPRM sought comment on whether any Freedom of Information
Act (FOIA) exemptions might apply to our collection of Form 395-B data.
Commenters assert that Form 395-B data reported by broadcasters should
not be publicly disclosed because doing so would reveal trade secrets
and commercial information to competitors. While FOIA Exemption 4
protects trade secrets and confidential commercial information from
mandatory public disclosure by the Commission, its applicability to the
information collected on Form 395-B is questionable. Further, even if
we were to find FOIA Exemption 4 applicable, the Commission is not
compelled to keep data covered by Exemption 4 confidential. The
Commission has authority to make records that fall within Exemption 4
public if it determines that the public interest in disclosure
outweighs the private interests in preserving the data's
confidentiality.
30. FOIA Exemption 4 protects from mandatory disclosure information
that is ``obtained from a person,'' as we recognize would be the case
here, and that is both (1) ``commercial or financial'' in character and
(2) ``privileged or confidential.'' Commenters assert that Form 395-B
demographic data are ``commercial information.'' The case law, however,
is not definitive on this question. Courts have sometimes defined
commercial information broadly to include information submitted to an
agency in which the submitter has a commercial interest, or to
encompass information that has intrinsic commercial value, the
[[Page 36711]]
disclosure of which would jeopardize a submitter's commercial interests
or ongoing operations. Those definitions might arguably apply to the
demographic information of employees. However, in a recent case very
closely on point, Center for Investigative Reporting v. U.S. Department
of Labor (Center for Investigative Reporting v. DOL), the U.S. District
Court for the Northern District of California held that the federal
government failed to prove that EEO-1 Consolidated Report (Type 2)
employee demographic data were ``commercial.'' Similar to Form 395-B
data, the EEO-1 Type 2 Reports do not include ``salary information,
sales figures, departmental staffing levels, or other identifying
information.'' Although the Type 2 Reports ``require companies [that do
business at two or more physical addresses] to report the total number
of employees across all their establishments,'' whereas the Form 395-B
breaks down this information by station employment units, neither form
links job categories to specific departments; rather, both require
information aggregated by type of job across all departments.
Furthermore, the EEO-1 reports utilize the same job title, gender, and
ethnicity categories as the information to be provided in Form 395-B.
Given these similarities between the EEO-1 reports and information to
be provided in Form 395-B, Center for Investigative Reporting suggests
that the Form 395-B data is at least arguably not correctly considered
to involve commercial information.
31. It is likewise not entirely clear whether the data at issue
here would be properly considered ``privileged or confidential.''
Information is confidential within the meaning of Exemption 4
``whenever it is customarily kept private, or at least closely held, by
the person imparting it.'' What matters is ``how [a] particular party
customarily treats the information, not how the industry as a whole
treats [it].'' Here, a commenter acknowledges that ``many employers
choose to publicly disclose workforce demographic data'' in ``a variety
of forms.'' And although the commenter distinguishes between Form 395-B
data and the EEO-1 data that companies often elect to disclose, we see
similarities between the two data sets, as discussed above.
32. In addition, as discussed further below, we note that
commenters have failed to show that competitive harm would result from
the collection and public release of the information provided in Form
395-B. While the Supreme Court held in Food Marketing Institute that a
showing of competitive harm is not required to protect information from
disclosure under Exemption 4, some courts have since declined to allow
agencies to withhold information covered by Exemption 4 without showing
an articulable harm from disclosure. These decisions rest on the theory
that under the FOIA Improvement Act of 2016--which did not apply to the
Food Marketing Institute case because it had not yet become effective
at the time that case was filed--agencies must produce information
otherwise covered by a FOIA exemption unless it is reasonably
foreseeable that disclosure would harm an interest protected by the
exemption (or disclosure is prohibited by law). However, the FOIA
Improvement Act has alternatively been interpreted in the Exemption 4
context to require no demonstration of harm beyond the loss of
confidentiality itself, and therefore the relevance of competitive harm
to the Exemption 4 analysis remains an unsettled issue.
33. Ultimately, however, we need not decide whether Exemption 4
covers the information collected on Form 395-B or assess the relevance
of the FOIA Improvement Act. The Commission has well-established
authority under section 4(j) of the Act to publicly disclose even trade
secrets or confidential business information if, after balancing the
public and private interests at stake, we determine that it is in the
public interest to do so.
34. In assessing the respective interests in the disclosure or non-
disclosure of Form 395-B data, we determine that the public interest in
disclosing Form 395-B data outweighs broadcasters' claims that such
disclosure might cause unspecified harm. As outlined above, there are
significant public interest benefits from public disclosure of Form
395-B data. Public disclosure of Form 395-B data promotes a more
accurate collection and recordation process. It increases the
likelihood that incomplete or inaccurate filings will be discovered and
corrected, and it will incentivize stations to file accurate data to
avoid third-party claims that submitted data are incorrect. It is also
consistent with Congress's goal to maximize the utility of the data an
agency collects for the benefit of the public. Public disclosure also
allows us to produce the most granular reports possible for the benefit
of Congress and the public, without being unnecessarily hampered by
concerns about inadvertent disclosures of identifiable information. And
public disclosure allows others to review the accuracy of our data
analyses and to question our methods for data collection with the
benefit of actual datasets.
35. In contrast to these significant public benefits, commenters
have failed to demonstrate that availability of the Form 395-B data
would cause meaningful competitive harm. For example, a commenter
asserts that if Form 395-B data were disclosed, a broadcaster's
competitors could exploit such information to gain competitive insights
into the broadcaster's business practices. Nothing in the record,
however, realistically demonstrates how the public release of Form 395-
B data might afford a competitor tangible insights into another
broadcaster's business practices that would lead to competitive harm.
Commenters have not provided any actual instances of harm related to
the Commission's previous collection and public disclosure of
demographic data, but rather largely project a speculative, worst-case
scenario. A commenter posits that competitors would be able to draw
more detailed insights by comparing published data over a stretch of
years; however, we fail to understand how any such result would have a
negative commercial impact on broadcasters. Moreover, the fact that a
number of broadcasters have begun to disclose workforce demographic
data, albeit not at the level of detail as would be reported on Form
395-B, also calls into question the extent of the competitive harm that
would result if that information were to be publicly released. Further,
guided in part by the court's analysis in Center for Investigative
Reporting v. United States Department of Labor, we remain unconvinced
that knowing the number of employees assigned to a particular job title
or category in a company without knowing other details--for example,
the duties of the employees, the structure of the company, salary
information--can provide any significant information to a competitor
that results in reasonably foreseeable or substantial competitive harm.
As noted by various commenters in the instant proceeding, Form 395-B
uses the same reporting methodology in terms of job categories as the
EEO-1, rather than reporting ``demographic information by division,
department, or `segment.' ''
36. We conclude that the public benefits of releasing the
information contained in Form 395-B are significant, while the harms
would be slight. Thus, balancing the public interests in disclosure
against the private interests at stake here, we find that there are
strong public interests in favor of disclosure and that, accordingly,
section 4(j) authorizes the
[[Page 36712]]
Commission to publicly disclose Form 395-B data.
37. Timing of Form Submission. As directed by Sec. 73.3612 of the
Commission's rules, broadcasters will be required to file Form 395-B
annually on or before September 30 of each year, after the Order
becomes effective. Authority is delegated to the Media Bureau to
announce and provide filing instructions before the first window opens.
The Commission established the September 30 deadline to align with the
deadline for EEO-1 filings to enable licensees and permittees that also
file similar data with the EEOC to conserve resources by using the same
pay period record information for both filings. Broadcasters may report
employment figures from any payroll period in July, August, or
September of the relevant year, but that same payroll period must be
used in each subsequent year's report by the licensee. Consistent with
previous practice, the Form 395-B will be due on or before September 30
of each calendar year. To provide broadcasters adequate notice
regarding the details of the electronic filing process, the Media
Bureau will issue a Public Notice with instructions about how to submit
the filings, prior to the first filing after the Order becomes
effective. This Public Notice will provide broadcasters ample time to
put into place whatever data collection processes they require,
including, for example, the development of employee surveys and
instructions for employees regarding which job classification to
report. It also will afford the Commission time to create and test an
electronic version of Form 395-B.
38. Identification of Non-Binary Gender Categories. Finally, in
reinstating the collection of Form 395-B, some commenters urge us to
incorporate into the form a mechanism that will enable identification
of non-binary gender categories. While the EEOC has incorporated a
comment box on the EEO-1 form allowing for submission of gender non-
binary information, both the EEOC and the Commission traditionally
track the definitions and standards on race, ethnicity and gender set
forth by OMB and used widely by the federal government. To date, OMB
has not prescribed conclusive classifications to capture non-binary
gender data. Federal guidance, however, recognizes the ``need to be
flexible and adapt over time'' in developing measures to collect such
data. Consistent with that guidance and our record, we believe it is
appropriate that the Form 395-B include a mechanism to provide further
specificity about broadcaster employees' gender identities.
39. We find that such an update fits within the latitude granted to
the Commission pursuant to section 334(c) of the Act to revise the
forms ``to reflect changes in . . . terminology.'' We also find that
the FNPRM provided sufficient public notice and opportunity for comment
to allow us to incorporate this change to the form. The FNPRM
encouraged commenters ``to provide any new, innovative, and different
suggestions for collecting and handling employment information on Form
395-B'' and asked if there were ``any other issues or developments that
[the Commission] should consider.'' We conclude that the suggestion to
include within the Form 395-B a mechanism to account for those who
identify as gender non-binary is a logical outgrowth from the FNPRM's
requests for comment. Accordingly, and after receiving only support for
and no opposition to the idea, we will include such a mechanism in the
reinstituted Form 395-B. We delegate to the Media Bureau the authority
to implement this change to the Form.
C. Constitutional Issues
40. Reinstatement of the Form 395-B data collection in a publicly
available manner is wholly consistent with the equal protection
guarantee contained in the Fifth Amendment of the Constitution. As
discussed below, collection of workforce data from broadcast licensees
on Form 395-B is race- and gender-neutral, and no race- or gender-based
government action flows from collection of the data or its public
availability. Accordingly, collection and publication of Form 395-B
data need only be rationally related to a legitimate governmental
interest to pass constitutional muster. Since the Commission has a
legitimate public interest in collecting Form 395-B data and doing so
on a transparent basis is rationally related to this interest,
reinstatement of Form 395-B as we propose is constitutionally
permissible. Finally, we find that the limitations the Commission has
placed on its own use of the data obviate the concerns raised in the
record about the potential for undue pressure being placed on, or
``raised eyebrow'' regulation of, broadcasters.
41. As the court in Lutheran Church acknowledged, the
Constitution's equal protection guarantee is not implicated if the
regulation at issue is neutral with respect to protected categories.
This standard is satisfied here, because both on its face and in
application, the collection of workforce data from broadcast licensees
on Form 395-B is race- and gender-neutral. Regardless of the
demographic makeup of a particular broadcast station employment unit,
all units with five or more full-time employees are required to file
their workforce data with the Commission. At no point does the
Commission use race and gender categories to direct units on whether
they must file the form; the number of employees within a given unit is
the sole criterion. Further reflecting the neutrality of the
application of the form, all units required to file with the Commission
use an identical Form 395-B to report their respective demographic and
job category data. By using employment size as the exclusive factor to
direct units to file broadcast workforce data, the completion of the
form in this regard is a neutral activity, ``devoid of ultimate
preferences'' for hiring on the basis of race or gender.
42. Furthermore, there is no race- or gender-based government
action that flows from collection of the data or its public
availability. Unlike the collection of this data 20 years ago, there is
no connection between the Form 395-B collection at issue here and the
EEO program requirements applicable to broadcasters. The court's
finding in Lutheran Church that the Commission's rules impermissibly
pressured broadcasters to engage in race-conscious hiring decisions
stemmed from the set of criteria that the Commission had created in
1980 to determine whether its review of a station's license renewal
application should include a closer examination of the station's EEO
program. Under those 1980 screening guidelines, the Commission would
review the adequacy of a station's EEO program if minorities and/or
women employed by the station were underrepresented as compared to the
available workforce. That requirement to compare the racial composition
of a station's workforce with that of the local population, and not the
requirement to report employment data that we reinstate today, was the
trigger for the court's strict scrutiny in that case.
43. While the Commission revised the EEO program requirements after
the Lutheran Church ruling, the use of race, ethnicity, and gender
information (albeit not Form 395-B data) was still linked to the
Commission's EEO program. The new EEO program allowed stations to
choose between two options for their recruiting programs. In MD/DC/DE
Broadcasters, the D.C. Circuit struck down the Commission's revised,
two-option EEO program because it found that broadcasters proceeding
under Option B of the program were pressured
[[Page 36713]]
to engage in race-conscious recruiting practices, given that Option B
required annual reporting of race, ethnicity, and gender information
for each job applicant. The court found that such pressure would lead
to outreach programs targeted at minority groups, to the potential
disadvantage of non-minority groups, and thus constituted a racial
classification that triggered strict scrutiny. Following the court's
decision, the Commission suspended both its EEO outreach requirements
and its Form 395-B filing requirement.
44. When the Commission later adopted new EEO program requirements
in the Second Report and Order and Third NPRM, it deferred action on
requiring the collection of workforce data, and the Form 395-B data
collection has been on hold ever since. Thus, these EEO program
requirements have existed independently of Form 395-B for the past 20
years. That the Commission's EEO program continued to operate even as
the Form 395-B collection was held in abeyance highlights the
separation of these two requirements. And we reiterate that going
forward, these two requirements--the filing of annual workforce data
and compliance with an EEO program--will continue to be divorced from
one another. As the Commission has recognized consistently for more
than 20 years, the Lutheran Church and MD/DC/DE Broadcasters decisions
do not prohibit the collection of employment data for the purpose of
analyzing industry trends. The Commission concluded more than two
decades ago in the 2000 Reconsideration Order that collecting
employment data solely for monitoring purposes would not violate
Lutheran Church, and we affirm that conclusion. The D.C. Circuit never
took issue with the Commission's collection of station-specific
employment data from broadcasters and making this data publicly
available. We continue to find the collection of this information to be
consistent with the Constitution and the public interest. The
Commission has stated unequivocally and emphatically that it will not
use the Form 395-B for assessing a licensee's compliance with EEO
program requirements. The agency even went so far as to codify that
policy in the Code of Federal Regulations, amending Sec. 73.3612 of
its rules in 2004 to prohibit explicitly the use of the Form 395-B data
for EEO compliance purposes. We reaffirm the Commission's previous
determination that workforce data collected on Form 395-B will be used
only for purposes of analyzing industry trends and reports by the
Commission, and that the use of such data to assess an individual
broadcast licensee's compliance with our EEO requirements will be
prohibited. Moreover, in the attached Order on Reconsideration, we
grant a previous request filed by the State Associations asking that we
modify the prohibition on our use of the form's data to explicitly bar
the Commission from employing this data to assess compliance with the
nondiscrimination requirement contained in Sec. 73.2080 of our rules.
Our granting of the State Associations' request further demonstrates
our commitment to use this data only for industry analysis and
reporting.
45. We disagree with commenters' assertion that collection or
publication of the data on a licensee- or station-attributable basis
will still somehow result in unconstitutional ``sub silentio''
pressures or ``raised-eyebrow'' regulation. We have stated repeatedly
and unequivocally, and codified the proposition in our rules, that we
will not use Form 395-B data for any purpose other than for analyzing
and reporting trends in the broadcast industry. Nonetheless, commenters
attempt to employ dicta from the D.C. Circuit in MD/DC/DE Broadcasters
and Lutheran Church about implicit pressures by claiming that, despite
the limitations the Commission has placed on its own use of the data,
third parties may use the data to place improper pressure on a licensee
to engage in preferential hiring practices to avoid having frivolous
complaints filed against it with the Commission. As an example, one
commenter claims that some loan agreements would require broadcasters
to disclose even frivolous petitions to their lenders, thereby adding
an element of risk to funding acquisitions. To address this concern, we
will make every effort to dismiss as quickly as possible any petitions,
complaints, or other filings that rely on a station's Form 395-B filing
as the basis of the petition, complaint, or other filing. Moreover,
broadcasters in that situation may apprise lenders of our intent to
dismiss such complaints and point to our rule disallowing the use of
the data for compliance purposes.
46. Broadcaster groups mistakenly assert that reinstating a public
collection of Form 395-B violates D.C. Circuit precedent, which the
commenters argue effectively invalidated the use of the Form 395-B for
all purposes. In arguing that the Lutheran Church decision invalidated
Form 395-B, however, the commenters erroneously treat all the EEO
requirements in effect at the time of Lutheran Church as one
inseparable rule that the D.C. Circuit vacated. The commenters are
incorrect in asserting that the court's finding of unconstitutional
pressure when the collection was combined with the then-existing EEO
program somehow invalidated the Form 395-B itself for any and all other
purposes. In fact, as noted above, what the Lutheran Church court found
to be problematic was the requirement to compare the racial composition
of a station's workforce with that of the local population, and not the
requirement to report employment data to the Commission. The court's
finding of unconstitutionality did not reach the Commission's use of
the form to gather data purely for statistical purposes and without
regard to a station's EEO compliance. Indeed, the court did not even
speak to the form's use in collecting employment data for the purpose
of analyzing industry trends, let alone invalidate it for that purpose.
47. Furthermore, we reject the suggestion that the finding in the
MD/DC/DE Broadcasters case somehow casts doubt on the legitimate use of
Form 395-B data for industry trend reporting, given that the Form 395-B
was not even at issue in that case. The Form 395-B was only mentioned
in the background section of that decision, as the collection of the
employee diversity data was irrelevant to the data at issue in that
case (i.e., applicant data). Rather, the court found the Commission's
revised EEO program problematic because it determined that broadcasters
proceeding under one aspect of the program (Option B) could feel
pressured to engage in race-conscious recruiting practices, given that
Option B required an annual reporting of the race, ethnicity, and
gender information for each job applicant.
48. Therefore, unlike applicant data required under Option B of the
former EEO program, the Form 395-B workforce data played no role in
assessing a broadcaster's compliance with the recruiting rules at issue
in MD/DC/DE Broadcasters. In the current situation no unconstitutional
use of racial or gender classifications arises from the Commission's
collection of annual employee data because we will not use the
collection of Form 395-B demographic data for purposes of assessing or
enforcing a broadcaster's compliance with our EEO rules. Further, we
find the commenter argument that the court in MD/DC/DE Broadcasters
disparaged the use of ``outputs'' to measure ``inputs'' to be
misplaced. First, as noted above, the court was referring to applicant
data--i.e., those applying to open job positions at the station--as the
output in that case, which was being
[[Page 36714]]
used to evaluate a broadcaster's outreach efforts and the success of
its EEO program in recruiting potential job applicants. Employee data--
i.e., the composition of the station's workforce, which is captured by
the Form 395-B--was not the ``output'' of concern. Second, to the
extent that employee data might be considered an output, the Commission
now explicitly prohibits the use of such data as a tool to measure a
broadcaster's ``inputs'' to its EEO program. Furthermore, the court in
MD/DC/DE Broadcasters never suggested that the collection of employee
data for statistical purposes factored into its analysis regarding the
unconstitutionality of the outreach rules.
49. Based on the above, we conclude that reinstating collection of
Form 395-B in a public manner, where the form's data can only be used
for reporting and analyzing industry trends, is fully consistent with
the determinations in Lutheran Church and MD/DC/DE Broadcasters. The
proposed action is race- and gender-neutral and crucial to Congress's
and the Commission's interest in understanding broadcast employment
trends. Because the Commission is the only entity with the resources
and expertise to expeditiously collect and compile this data, it is
vital that the agency restart this collection. With current data, the
Commission, Congress, and the general public can better understand
developments in the broadcast sector.
50. Although no commenter raised a First Amendment issue, we
clarify that requiring stations to publicly disclose their workforce
composition data does not constitute ``compelled speech'' on matters of
race and gender, in violation of the First Amendment. A requirement to
report information to the government fundamentally differs from the
typical compelled speech case, which generally involves situations
where ``the complaining speaker's own message [is] affected by the
speech it [is] forced to accommodate.'' Conversely, the Form 395-B
report requires reporting of factual information to the Commission--the
station's own employment figures--to allow the Commission to analyze
trends. There is no message being forced by the government.
51. Even assuming, arguendo, that broadcaster's speech rights are
implicated, our Form 395-B requirement is consistent with the First
Amendment, as it entails disclosure of ``purely factual and
uncontroversial'' information in a commercial context. The D.C. Circuit
has ruled that government interests in addition to correcting deception
can be invoked to sustain a mandate for disclosure of purely factual
information in the commercial context. The Zauderer test is satisfied
here because disclosure of workforce data is reasonably related to a
substantial governmental interest (ensuring maximum accuracy and
utility of the data on which the government relies for analysis and
reporting purposes), which outweighs the ``minimal'' interest in not
disclosing purely factual, uncontroversial information. In the
alternative, even assuming, arguendo, that our requirement is subject
to heightened First Amendment review, we find that our disclosure
requirement satisfies even this higher standard. The government has a
substantial interest in analyzing broadcast industry workforce
information to support greater understanding of the broadcast industry
and to report to Congress about the same. Collecting this data and
making broadcasters' Form 395-B filings publicly available directly
advance this governmental interest because without the data it would be
impossible to assess changes, trends, or progress in the industry and
making the information public ensures maximum accuracy of the submitted
data by increasing the likelihood that erroneous data will be
discovered and corrected and incentivizing stations to file accurate
data and thereby maximizes the utility of the data. Moreover, the
requirement is not more extensive than is necessary to serve that
interest, because the data will be collected in a manner consistent
with the Commission's previous, long-standing method of collecting the
data and because, as this order has made clear, the data collected will
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 compliance with the EEO rules.
D. The Commission Has Broad Authority To Collect Form 395-B
52. We find sufficient authority to reinstate the collection of
Form 395-B, both pursuant to the public interest provisions of the Act
and section 334. The Commission's adoption of Form 395-B preceded
Congress's passage of section 334 by more than two decades. As
discussed above in Section II, the form and the Commission's EEO rules
were rooted firmly in the Commission's public interest mandate under
sections 4(i), 303, 307, 308, 309, and 310 the Communications Act. By
codifying the Commission's then existing EEO requirements, as well as
the collection of Form 395-B, Congress, in 1992, ratified the
Commission's pre-existing authority to adopt such rules and forms
through congressional acquiescence in a long-standing agency policy. As
the Commission discussed extensively in the Second Report and Order and
Third NPRM in this proceeding, the limitation imposed by section 334
regarding changes to the Commission's then-existing EEO rules and forms
evidenced Congress's approval of the Commission's EEO approach
(including the information collection) and its desire to ensure its
continuance. Lawmakers' express endorsement of the rules 30 years ago
did not in any way undermine the Commission's pre-existing public
interest authority. Moreover, the Commission also has broad authority
under the Communications Act to collect information and prepare
reports.
53. Despite this settled law, commenters challenge our authority to
reinstate the form's collection, reviving arguments that the Commission
rejected 20 years ago in the Second Report and Order and Third NPRM.
First, they assert that, rather than a grant of EEO authority, section
334 is a limitation on the Commission's authority to revise its EEO
regulations and forms. They suggest that the Commission is constrained
from reinstating Form 395-B because, in setting forth the permissible
exceptions to its restriction on EEO changes, Congress did not include,
or later add, the situation where some provisions of the EEO rules are
deemed unenforceable, as occurred in Lutheran Church and MD/DC/DE
Broadcasters. Second, commenters posit that the Commission is taking
inconsistent positions on the current force of section 334. They argue
that, if section 334 is still in force and dictates reinstatement of
Form 395-B, then the Commission's current EEO outreach rules violate
the statutory provision because those rules have undergone substantial
revision. The commenters assert that the Commission ``cannot have it
both ways'' by rejecting the constraints of section 334 when it
previously revised its EEO rules, but now invoking the same provision
to reinstate Form 395-B.
54. We find commenters' assertions unsound as a matter of law and
logic. They disregard the Commission's public interest authority under
the Act, which was the underpinning of the Commission's EEO rules and
Form 395-B long before the passage of section 334. Further, the
commenters also misconstrue the impact of the court decisions on our
section 334 authority. While the Lutheran Church court invalidated
elements of the EEO
[[Page 36715]]
program requirements in effect in 1992, thereby terminating their
enforceability, it did not address the constitutionality of section 334
itself. Moreover, the subsequent decision in MD/DC/DE Broadcasters did
not imply that the unconstitutionality of the previous regulations
rendered section 334 inoperative.
55. We therefore continue to reject the commenters' false premise
that section 334 was somehow ``neutered'' by the D.C. Circuit
decisions. Section 334 continues to provide authority for reinstating
Form 395-B. Moreover, as discussed above, we find ample legal authority
separate from section 334 to reinstate collection of the form.
Order on Reconsideration
56. In 2004, the State Associations filed a petition seeking
reconsideration of the Third Report and Order and Fourth NPRM. The
petition asks the Commission: (1) to amend the Note to Sec. 73.3612 of
the Commission's rules to, in their view, clarify and strengthen the
Commission's pledge to refrain from using Form 395-B data for
compliance or enforcement purposes; (2) to address the issue of
confidential treatment for Form 395-B; and (3) to issue a Fourth Report
and Order resolving issues raised in the Third Report and Order and
Fourth NPRM and in petitions for reconsideration filed in response to
the Second Report and Order and Third NPRM. Numerous parties jointly
filed an opposition to the petition. We hereby grant the State
Associations' petition in part, deny it in part, dismiss it in part,
and defer it in part.
57. The State Associations seek an expansion of the Commission's
pledge to not use Form 395-B data to assess an individual broadcast
licensee's compliance with the EEO rules to read as follows, with their
proposed changes shown in italics:
Note to Sec. 73.3612: 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 or permittee's compliance with the
nondiscrimination or equal employment opportunity requirements of
Sec. 73.2080. Accordingly, the Commission will not entertain any
allegation or showing that a broadcast licensee or permittee has
violated any aspect of Sec. 73.2080 on the basis that the station's
workforce does not reflect a certain number of persons of a
particular gender, race or ethnicity either overall or in any one or
more job categories.
58. Based on the record stemming from the State Associations' 2004
petition for reconsideration and the determinations made in the Fourth
Report and Order above, we find it appropriate to make certain changes
to the language of Sec. 73.3612 of our rules. With regard to the first
of the State Associations' proposed changes, the opposing parties do
not object to adding the phrase ``or permittee's,'' and we agree to
make that change because permittees also are required to file Form 395-
B. We also find that explicitly stating in the rule itself that we will
not use Form 395-B data to assess compliance with both the equal
employment opportunity requirements and nondiscrimination requirements
of Sec. 73.2080 of our rules is consistent with our statements in the
Fourth Report and Order above and with statements made by the
Commission over the past two decades.
59. While the opponents to this change argue that we should not
categorically limit our discretion to use EEO data as one of many
factors in assessing a complaint of discrimination, these same
opponents also acknowledge that the ``Note itself, along with the text
of [the] 3rd R&O, make it plain that the FCC will not use annual
employment data to assess compliance with the EEO rules of any
individual broadcast licensee.'' Hence, codifying the limitation is
nothing more than memorializing in another form a prohibition that the
Commission has had in place for more than 20 years. This approach
minimizes confusion about our position. We do not, however, see any
need to include the final sentence suggested by the State Associations,
as we find that it is essentially a repetition of the preceding
sentence now that we have added ``nondiscrimination or'' to the
preceding sentence. Finally, to conform to the publishing conventions
of the National Archives and Records Administration's Office of the
Federal Register, we will now incorporate what currently appears as a
Note to Sec. 73.3612 into the rule itself.
60. With regard to the State Associations' petition on the issue of
confidential treatment of the Form 395-B data, we respond by adopting
the Fourth Report and Order above, which reinstates the Form 395-B data
collection in a public manner. Most of the remaining issues raised in
State Associations' petition for reconsideration of the Second Report
and Order and Third NPRM are unrelated to the Form 395-B filing
requirement and, hence, we defer action on them here because they are
beyond the scope of this Order on Reconsideration. We dismiss as moot
two specific issues raised in the petition: (1) the ability to recruit
via the internet, which the Commission addressed in the intervening
time period, and (2) a modification to the effective date of the then
new rules.
Procedural Matters
61. Regulatory Flexibility Act. The Regulatory Flexibility Act of
1980, as amended (RFA) requires that an agency prepare a regulatory
flexibility analysis for notice and comment rulemakings, unless the
agency certifies that ``the rule will not, if promulgated, have a
significant economic impact on a substantial number of small
entities.'' Accordingly, we have prepared a Final Regulatory
Flexibility Analysis (FRFA) concerning the potential impact of rule and
policy changes adopted in the Fourth Report and Order on small
entities. Additionally, we have prepared a Final Regulatory Flexibility
Certification (FRFC) certifying that the rule and policy changes
contained in the Order on Reconsideration will not have a significant
economic impact on a substantial number of small entities.
62. Paperwork Reduction Act. Final Paperwork Reduction Act Analysis
for Fourth Report and Order and Order on Reconsideration in MB Docket
No. 98-204. This Fourth Report and Order and Order on Reconsideration
may contain new or modified information collection requirements subject
to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. All
such changes will be submitted to the Office of Management and Budget
(OMB) for review under section 3507(d) of the PRA. OMB, the general
public, and other Federal agencies will be invited to comment on any
new or modified information collection requirements contained in this
proceeding. In addition, we note that pursuant to the Small Business
Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C.
3506(c)(4), we previously sought specific comment on how the Commission
might further reduce the information collection burden for small
business concerns with fewer than 25 employees. In this present
document, we have assessed the effects of reinstating the collection of
information on Form 395-B from broadcasters with five or more full-time
employees and adding language to our rules clarifying that restrictions
regarding the Commission's use of the collected data protect broadcast
permittees as well as licensees. We find that, with respect to
businesses with fewer than 25 employees, the paperwork burden
associated with the completion and submission of Form 395-B will be
minimal and the collection is necessary
[[Page 36716]]
to serve the purpose of obtaining complete information on employment
trends in the broadcast industry. As it is customary for companies to
routinely maintain employee information for various purposes, including
payroll, broadcasters should not have to engage in extensive research
to complete and submit their Form 395-B.
63. Congressional Review Act. The Commission has determined, and
the Administrator of the Office of Information and Regulatory Affairs,
Office of Management and Budget, concurs, that this rule is ``non-
major'' under the Congressional Review Act, 5 U.S.C. 804(2). The
Commission will send a copy of this Fourth Report and Order and Order
on Reconsideration to Congress and the Government Accountability Office
pursuant to 5 U.S.C. 801(a)(1)(A).
Final Regulatory Flexibility Act Analysis (Report & Order)
64. Final Regulatory Flexibility Analysis. As required by the
Regulatory Flexibility Act of 1980, as amended (RFA) an Initial
Regulatory Flexibility Analysis (IRFA) was incorporated in the 2021
Further Notice of Proposed Rulemaking (FNPRM) to this proceeding. The
Federal Communications Commission (Commission) sought written public
comment on the proposals in the FNPRM, including comment on the IRFA.
The Commission received no comments on the IRFA. This present Final
Regulatory Flexibility Analysis (FRFA) conforms to the RFA.
A. Need for, and Objectives of, the Report and Order
65. This Fourth Report and Order reinstates the Commission's annual
collection of broadcast workforce composition data by race and gender
on FCC Form 395-B. We will use the collected data to analyze industry
trends and make reports to Congress. Before the form's prolonged
suspension beginning in 2001, the Commission made the collected
workforce data publicly available. As stated in the Fourth Report and
Order, we will continue with the public collection and dissemination of
the data, which is in alignment with the public interest. Other than
the inclusion of a mechanism allowing broadcasters to account in the
Form 395-B for those employees who identify as gender non-binary, the
reinstated collection does not change the form's reporting
requirements. The inclusion of this mechanism, which will allow for
accurate data gathering, will incur only a minimal economic impact on a
substantial number of small entities.
66. The reinstatement arrives after a significant period of delay
in collection, which created a material gap in workforce composition
data to be collected and analyzed by the Commission. Without the data,
the Commission is prevented from analyzing important industry trends
and reporting to Congress its analyses on the broadcast sector. A
reinstituted collection of Form 395-B will allow us to carry out the
public interest authority of this agency, and to implement section 334
of the Act, which instructs the Commission to collect broadcast
workforce data.
B. Legal Basis
67. The Fourth Report and Order is authorized under sections 1,
4(i), 4(k), 303(r), 307, 308, 309, 310, 334, and 403 of the
Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i), 154(k),
303(r), 307, 308, 309, 310, 334, and 403.
C. Summary of Significant Issues Raised by Public Comments in Response
to IFRA
68. There were no comments in response to IRFA notice.
D. Response to Comments by the Chief Counsel for Advocacy of the Small
Business Administration
69. Pursuant to the Small Business Jobs Act of 2010, which amended
the RFA, the Commission is required to respond to any comments filed by
the Chief Counsel for Advocacy of the Small Business Administration
(SBA), and to provide a detailed statement of any change made to the
proposed rules as a result of those comments. The Chief Counsel did not
file any comments in response to the FNPRM in this proceeding.
E. Description and Estimate of the Number of Small Entities to Which
the Rules Apply
70. The RFA directs the Commission to provide a description of and,
where feasible, an estimate of the number of small entities that will
be affected by the rules adopted herein. The RFA generally defines the
term ``small entity'' as having the same meaning as the terms ``small
business,'' ``small organization,'' and ``small government
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 SBA. Below, we
provide a description of such small entities, as well as an estimate of
the number of such small entities, where feasible.
F. Description and Estimate of the Number of Small Entities to Which
the Rules Apply
71. The RFA directs the Commission to provide a description of and,
where feasible, an estimate of the number of small entities that will
be affected by the rules adopted herein. The RFA generally defines the
term ``small entity'' as having the same meaning as the terms ``small
business,'' ``small organization,'' and ``small government
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 SBA. Below, we
provide a description of such small entities, as well as an estimate of
the number of such small entities, where feasible.
72. Television Broadcasting. This industry is comprised of
``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 small business standard for
this industry classifies businesses having $41.5 million or less in
annual receipts as small. 2017 U.S. Census Bureau data indicate that
744 firms in this industry operated for the entire year. Of that
number, 657 firms had revenue of less than $25,000,000. Based on this
data we estimate that the majority of television broadcasters are small
entities under the SBA small business size standard.
73. As of September 30, 2023, there were 1,377 licensed commercial
television stations. Of this total, 1,258 stations (or 91.4%) had
revenues of $41.5 million or less in 2022, according to Commission
staff review of the BIA Kelsey Inc. Media Access Pro Television
Database (BIA) on October 4, 2023, and therefore these licensees
qualify as small entities under the SBA definition. In addition, the
Commission estimates
[[Page 36717]]
as of September 30, 2023, there were 383 licensed noncommercial
educational (NCE) television stations, 380 Class A TV stations, 1,889
LPTV stations and 3,127 TV translator stations. The Commission,
however, does not compile and otherwise does not have access to
financial information for these television broadcast stations that
would permit it to determine how many of these stations qualify as
small entities under the SBA small business size standard.
Nevertheless, given the SBA's large annual receipts threshold for this
industry and the nature of these television station licensees, we
presume that all of these entities qualify as small entities under the
above SBA small business size standard.
74. Radio Stations. This industry is comprised of ``establishments
primarily engaged in broadcasting aural programs by radio to the
public.'' Programming may originate in their studio, from an affiliated
network, or from external sources. The SBA small business size standard
for this industry classifies firms having $41.5 million or less in
annual receipts as small. U.S. Census Bureau data for 2017 show that
2,963 firms operated in this industry during that year. Of this number,
1,879 firms operated with revenue of less than $25 million per year.
Based on this data and the SBA's small business size standard, we
estimate a majority of such entities are small entities.
75. The Commission estimates that as of September 30, 2023, there
were 4,452 licensed commercial AM radio stations and 6,670 licensed
commercial FM radio stations, for a combined total of 11,122 commercial
radio stations. Of this total, 11,120 stations (or 99.98%) had revenues
of $41.5 million or less in 2022, according to Commission staff review
of the BIA Kelsey Inc. Media Access Pro Database (BIA) on October 4,
2023, and therefore these licensees qualify as small entities under the
SBA definition. In addition, the Commission estimates that as of
September 30, 2023, there were 4,263 licensed noncommercial (NCE) FM
radio stations. The Commission however does not compile, and otherwise
does not have access to financial information for these radio stations
that would permit it to determine how many of these stations qualify as
small entities under the SBA small business size standard.
Nevertheless, given the SBA's large annual receipts threshold for this
industry and the nature of radio station licensees, we presume that all
of these entities qualify as small entities under the above SBA small
business size standard.
76. We note, however, that 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,
another element of the definition of ``small business'' requires that
an 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 broadcast station is dominant in
its field of operation. Accordingly, the estimate of small businesses
to which the rules may apply does not exclude any radio or television
station from the definition of a small business on this basis and is
therefore possibly over-inclusive. An additional element of the
definition of ``small business'' is that the entity must be
independently owned and operated. Because it is difficult to assess
these criteria in the context of media entities, the estimate of small
businesses to which the rules may apply does not exclude any radio or
television station from the definition of a small business on this
basis and similarly may be over-inclusive.
G. Description of Projected Reporting, Recordkeeping, and Other
Compliance Requirements
77. In this section, we identify the reporting, recordkeeping and
other compliance requirements contained in the Fourth Report and Order
and consider whether small entities are affected disproportionately by
any such requirements. By this Fourth Report and Order, broadcasters
are required to resume filing Form 395-B, which will be available to
the public. The annual filing of Form 395-B will require employment
units to upload the form onto the Commission's website. As recognized
by the Office of Management and Budget (OMB), the Commission has
estimated in the instructions to Form 395-B that the form's paperwork
burden is minimal, taking each response, or form, approximately one
hour to complete. This estimate includes the time to read the
instructions, look through existing records, gather and maintain the
required data, and actually complete and review the form or response.
Because this Fourth Report and Order contains no new reporting or
recordkeeping requirements, other than the incorporation of a mechanism
to enable identification of gender non-binary categories, and only
resumes the filing of an existing form, the reporting, recordkeeping
and other compliance requirements of small entities will be no greater
than under the current rules. Additionally, broadcast employment units
with less than five full-time employees are exempt from filing
statistical data. Because of this minimal reporting burden and due to
the fact that smaller station employment units are exempt, we conclude
that small entities will not be disproportionately affected by the
Fourth Report and Order.
H. Steps Taken To Minimize Significant Economic Impact on Small
Entities, and Significant Alternatives Considered
78. 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.
79. This Fourth Report and Order reinstates the collection of
broadcaster employment data on Form 395-B. Collection of the Form 395-B
was suspended in 2001 following two decisions 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 rules.
This suspension had no relation to the impact of the collection on
small entities. As noted above, the filing requirement of Form 395-B
importantly does not apply to broadcast employment units with less than
five full-time employees, thereby exempting a large group of smaller
entities from the filing requirements. The Fourth Report and Order only
leads to a resumption of data collection efforts and imposes no new
requirements for which the Commission can find alternatives that would
minimize the economic burden on small entities.
I. Report to Congress
80. The Commission has determined, and the Administrator of the
Office of Information and Regulatory Affairs, Office of Management and
Budget, concurs, that this rule is ``non-major'' under the
Congressional Review Act, 5 U.S.C. 804(2). The Commission will send a
copy of this Report & Order and Order on Reconsideration to Congress
[[Page 36718]]
and the Government Accountability Office pursuant to 5 U.S.C.
801(a)(1)(A).
Final Regulatory Flexibility Certification Analysis (Order on
Reconsideration)
81. For the reasons described below, we now certify that the
policies and rules adopted in the Order on Reconsideration will not
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 SBA.
82. In this Order on Reconsideration, we make certain changes to
the language of Sec. 73.3612 to clarify our collection and use of Form
395-B data. We add language to the rule confirming that the collection
of Form 395-B data, and restrictions on the use of the data, also
applies to broadcast permittees. The Order on Reconsideration adds an
explicit statement to its rules that it will not use Form 395-B data to
assess compliance with both the equal employment opportunity
requirements and nondiscrimination requirements of Sec. 73.2080. We
find that this statement is consistent with our statements in the
Fourth Report and Order and other previous statements made by the
Commission over the past two decades.
83. The changes from the Order on Reconsideration will not have a
significant economic impact on a substantial number of small entities
because such changes do not alter the type or extent of information
collected under Form 395-B. Rather, the Order on Reconsideration does
nothing more than memorialize in another form a prohibition that the
Commission has had in place for more than 20 years. Therefore, we
certify that the changes provided in the Order on Reconsideration will
not have a significant economic impact on a substantial number of small
entities. The Commission will send a copy of this Order on
Reconsideration, including a copy of this Final Regulatory Flexibility
Certification, in a report to Congress and the Government
Accountability Office pursuant to the Small Business Regulatory
Fairness Act of 1996.
Ordering Clauses
84. Accordingly, it is ordered that, pursuant to the authority
contained in sections 1, 4(i), 4(k), 303(r), 307, 308, 309, 310, 334,
403, and 634 of the Communications Act of 1934, as amended, 47 U.S.C.
151, 154(i), 154(k), 303(r), 307, 308, 309, 310, 334, 403, and 554,
this Fourth Report and Order and Order on Reconsideration is adopted.
85. It is further ordered that this Fourth Report and Order and
Order on Reconsideration shall be effective 30 days after publication
in the Federal Register. Compliance with Sec. 73.3612 of the
Commission's rules, 47 CFR 73.3612, which may contain new or modified
information collection requirements, will not be required until the
Office of Management and Budget completes review of any information
collection requirements that the Office of Management and Budget
determines is required under the Paperwork Reduction Act. The
Commission directs the Media Bureau to announce the compliance date for
the Fourth Report and Order and Order on Reconsideration by subsequent
Public Notice.
86. It is further ordered that the Joint Petition of the State
Broadcasters Associations for Reconsideration and/or Clarification of
the Third Report and Order and Fourth NPRM, MM Docket No. 98-204 (filed
July 23, 2004), is granted in part, denied in part, dismissed in part,
and deferred in part.
87. It is further ordered that the Media Bureau is hereby directed
to make the necessary changes to Form 395-B to provide for inclusion of
gender non-binary information.
88. It is further ordered that the Commission's Consumer and
Governmental Affairs Bureau, Reference Information Center, shall send a
copy of the Fourth Report and Order and Order on Reconsideration,
including the Final Regulatory Flexibility Analysis and the Initial
Regulatory Flexibility Certification, to the Chief Counsel for Advocacy
of the Small Business Administration.
89. It is further ordered that the Office of the Managing Director,
Performance Program Management, shall send a copy of this Fourth Report
and Order and Order on Reconsideration in a report to be sent to
Congress and the Government Accountability Office pursuant to the
Congressional Review Act, 5 U.S.C. 801(a)(1)(A).
Federal Communications Commission.
List of Subjects in 47 CFR Part 73
Radio, Reporting and recordkeeping requirements, Television.
Marlene Dortch,
Secretary.
Final Rules
For the reasons discussed in the preamble, the Federal
Communications Commission amends 47 CFR part 73 as follows:
PART 73--RADIO BROADCAST SERVICES
0
1. The authority citation for part 73 continues to read as follows:
Authority: 47 U.S.C. 154, 155, 301, 303, 307, 309, 310, 334,
336, 339.
0
2. Revise Sec. 73.3612 to read as follows:
Sec. 73.3612 Annual employment report.
Each licensee or permittee of a commercially or noncommercially
operated AM, FM, TV, Class A TV or International Broadcast station with
five or more full-time employees shall file an annual employment report
with the FCC on or before September 30 of each year on FCC Form 395-B.
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 or permittee's compliance
with the nondiscrimination or equal employment opportunity requirements
of Sec. 73.2080. Compliance with this section will not be required
until this sentence is removed or contains a compliance date, which
will not occur until after the Office of Management and Budget
completes review of any information collection requirements pursuant to
the Paperwork Reduction Act or until after the Office of Management and
Budget determines that such review is not required.
[FR Doc. 2024-09468 Filed 5-2-24; 8:45 am]
BILLING CODE 6712-01-P
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