FCC's EEO Item in 'Must-Vote,' Would Reinstate Form 395-B
An FCC draft order on collecting broadcaster workforce diversity data using form 395-B has three votes but may not be approved until next week or later under the agency’s “must vote” procedures, industry officials told us. The draft equal employment opportunity item would make broadcaster diversity data publicly available in an online portal and includes a Further NPRM on extending the rules to cable, industry officials told us. “Broadcasting has such a great influence, it is essential that any hint of discriminatory intent or impact” be considered when assessing a broadcaster’s qualifications to hold a license, said Multicultural Media Technology and Internet Council Senior Adviser David Honig, a longtime supporter of the EEO proposal.
The draft order's three votes for approval, likely from the agency’s Democrats, came shortly after it was circulated at the end of December, industry and agency officials told us. The other commissioners, presumably Republicans Nathan Simington and Brendan Carr, have not voted but would be compelled to do so during the next week or two under must-vote rules, industry officials told us. The FCC didn’t comment.
The draft item would revive after more than 20 years Form 395-B, which broadcasters used for reporting employees' race and gender and the demographics of each job category. The form was suspended in 2001 over constitutional issues after the U.S. Court of Appeals for the D.C. Circuit decision vacated portions of the FCC’s EEO rules. An FCC attempt in 2004 to bring back the form was suspended over concerns about employee data confidentiality. Industry officials told us that a large portion of the draft order lays out the case for why reviving the form collection is constitutional now. The FNRPM with the draft item would seek comment on reviving form 395-A, which would collect similar workforce composition data from the cable industry. In the FCC’s 2021 further notice on the EEO data collection, the agency pointed out that Congress requires it to collect the data.
The draft order would make the workplace composition data publicly available in an online portal and attributable to individual broadcasters, broadcast industry officials told us. Broadcasters allege that this information could be used to attack license renewals, while civil rights groups and other data collection supporters believe it's needed to improve broadcasting's diversity. “When our broadcasters reflect the makeup of our communities, they’re better equipped to report on the full spectrum of issues that matter to viewers,” said Sen. Chris Van Hollen, D-Md., in a letter last month calling for FCC action on the item (see 2312150051). “Understanding the composition of our broadcast workforce helps achieve that goal.”
Though MMTC has called for a number of enhanced enforcement policies around EEO, those proposals weren’t teed up in the 2021 EEO FNPRM. Chairwoman Jessica Rosenworcel could enact through executive action changes such as whistleblower protections for EEO violations and increased audit frequency, Honig said previously. The agency issued an EEO forfeiture this month that appeared to broaden the scope of what the FCC considers as evidence of a station not meeting EEO requirements (see 2401160062). “This case shows the continuing importance that the FCC places on EEO enforcement,” Wilkinson Barker broadcast attorney David Oxenford said in a blog post.