The Multicultural Media, Telecom and Internet Council is worried that some broadcasters and state associations are trying to “totally eviscerate, diminish or cripple” enforcement of the FCC’s Equal Employment Opportunity rules.
Some broadcasters have argued that current rules, “with their laudable goals,” require burdensome paperwork and nonproductive effort, especially at smaller companies; they laid out those arguments as part of an FCC notice of proposed rulemaking.
MMTC recently replied with a 22-page letter from its President Emeritus and Senior Advisor David Honig to Chairman Ajit Pai and the other four commissioners. It says some broadcaster proposals are contrary to the intent of the NPRM.
RESET SMALL-STATION EXEMPTION?
MMTC found “common ground” with broadcasters on certain issues, including the need for the FCC to publicize its EEO whistleblower and anti-retaliation rules.
But it took issue with the overall tone of comments to the commission. “This proceeding is not about how to totally eviscerate, diminish or cripple EEO enforcement,” Honig wrote. “Instead, the NPRM called for comments on how to improve the current EEO enforcement system.”
The regulations disallow the use of race and gender in hiring decisions, while seeking to ensure that qualified persons, including minorities and women, can learn of and compete on an equal footing for job openings.
They also require broadcasters to take steps to provide notice of each full-time opening and participate in recruitment initiatives like job fairs and internship programs, along with additional steps.
According to the FCC, each year it audits the EEO programs of approximately 5% of both radio and TV stations. It also can review compliance at the time of a broadcaster’s license renewal.
According to a summary on the Broadcast Law Blog, the back-and-forth began when the FCC asked for comments on its NPRM in MB docket 19-177, prompted by complaints raised in connection with abolition of the Form 397 Mid-Term report.
Much of the debate focuses on comments from a group of 82 broadcasters, represented by attorney John Garziglia of Womble Bond Dickinson, that submitted joint comments last year. They believe that the FCC’s documentation and paperwork approach to nondiscrimination and employment diversity is not working.
“In the absence of evidence that the current FCC’s paperwork and recordkeeping requirements prevent or reduce discrimination, or increase employment diversity, the FCC should generally direct its regulatory efforts to finding effective ways to achieve the important goals of nondiscrimination and employment diversity,” the group wrote.
The coalition of 82 broadcasters — some consisting of one or a few stations, others with dozens — titled its filing “EEO Enhancements” but concluded: “If the FCC’s paperwork and recordkeeping requirements do nothing toward reducing discrimination or enhancing diversity, they should and must be jettisoned.”
But it also told the FCC that its members have “no desire to lessen or diminish the FCC’s quest for diversity in employment, and full and transparent opportunities for all seekers of jobs in the broadcasting industry. To the contrary, [we] believe that the commission can do more to achieve its goal.”
These broadcasters proposed requiring a wide outreach through a nationally or regionally recognized job-oriented website for every full-time broadcast station employment opening, no matter how few employees it has. “The placement of an internet posting for an open position at a broadcast station is something that most stations now do, and requiring it of all broadcast stations is not an undue burden and is an effort that may bring future broadcasters into the now exempted stations.”
The group also proposes to put an end to the consideration of market-based “employment units,” given the abolition of the broadcast station main studio rule, in favor of an examination of a broadcaster as an entire entity. It calls this “a more pragmatic and sensible definition of employment unit.”
“In return, however,” the broadcasters continued, they asked the FCC to reset the small-station exemption for EEO documentation and supplemental initiative requirements.
“Reduce EEO paperwork for small broadcasters by exempting entities with fewer than 50 full-time employees, which is the number … regarded by the human resources profession as demarcating smaller from larger entities,” according to the filing.
The MMTC’s Honig responded directly to several comments from the coalition, which he said “expressly advocated heading backward toward less enforcement, less accountability, and more opportunities for intentional discriminators. … Their approach would help no one but the bad apples in their industries that seek to evade accountability for discrimination. Such comments are not responsive to the NPRM.”
Moreover Honig is troubled by the “hostile language” in some filings.
“According to the 82 Licensees, EEO compliance imposes a crippling resource burden that simply takes away from the important task of broadcasting. There is no evidence to support this assertion.”
Comments by state broadcast associations also caught the attention of MMTC. Associations wrote in a joint filing: “Many of the proposals presented in this proceeding would dramatically increase burdens on broadcasters while at the same time being of both questionable constitutionality and little practical utility in achieving the commission’s stated goals.”
In addition, the associations wrote, the FCC “has not found a single broadcaster to have engaged in discrimination since the advent of the first EEO rules in 1969.”
The National Association of Broadcasters echoed that theme: “To our knowledge, the commission has conducted tens of thousands of reviews of broadcasters’ EEO programs since the rules became effective in 2003, without one finding of discrimination. This includes random EEO audits, mid-term reviews and license renewal examinations,” NAB commented.
To this line of argument, Honig replied in his December letter: “The fact that an industry contains discriminators, but they never get prosecuted, much less held liable, is certainly not a strong argument for weakening the obviously insufficient EEO compliance program in place now. That is a damning indictment of the agency’s enforcement program. It is simply not the case that broadcasting is the only industry in the nation whose thousands of employers included no racial or gender discriminators for the past 50 years.”
MMTC said it believes its position is bolstered by comments by several individuals including Dr. Jannette Dates, dean emerita of the Howard University School of Communications, Dr. Valerie White, associate professor at the School of Journalism & Graphic Communication at Florida A&M University; and Zemira Jones, president and CEO of the All American Management Group and former vice president of operations for Radio One.
Another MMTC witness, Robert Neal, president and general Manager of WQID(LP), Hattiesburg, Miss., and executive director of the International Black Broadcasters Association, wrote: “It is absolutely without question that racial discrimination persists in the radio and television industries. I have seen extraordinary well-qualified African American managers, announcers and salespersons get shunted aside when jobs open up. Often they find out the jobs were available only after they were filled,” Neal wrote.
“EDGE OF CONSTITUTIONALITY”
Whereas EEO supporters asked the FCC for more frequent EEO audits, the National Association of Broadcasters pleaded against this.
“Rather, the commission should minimize the unjustified burdens of EEO audits by eliminating audits for small broadcasters,” NAB wrote. It added, “the record [FCC proceeding] lacks support for additional EEO rules and regulations.”
The NAB estimated the cost of an audit in the $3,000 to $5,000 range. NAB also said that the commission “should be wary of imposing more EEO rules, as the current regime already flirts with the edge of constitutionality, and there is no evidence of discrimination in broadcasting that justifies additional regulation or that more EEO rules will actually increase employment diversity.”
The association said additional EEO rules are unjustified and unnecessary.