This News Release: Text | WordPerfect
Statements: Kennard & Tristani | Ness | Furchtgott-Roth | Powell
FCC 98-305: Text | WordPerfect | Acrobat

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This is an unofficial announcement of Commission action. Release of the full text of a Commission order constitutes official action. See MCI v. FCC. 515 F 2d 385 (D.C. Circ 1974).

Report No. MM 98-17 MASS MEDIA ACTION November 19, 1998

(MM Dockets 98-204, 96-16)

The FCC today proposed new Equal Employment Opportunity (EEO) rules that would require broadcast licensees to inform women and members of minority groups of job vacancies.

The FCC's Notice of Proposed Rulemaking was adopted in response to the D.C.Circuit Court of Appeals decision earlier this year in Lutheran Church-Missouri Synod v. FCC ("Lutheran Church") which ruled that the Commission's broadcast EEO program requirements were unconstitutional as applied to minorities. The Commission said the revised rules being proposed today were drafted to be consistent with the Constitutional concerns in that case whereby the court found that the Commission's regulatory scheme "pressure[s] stations to maintain a work force that mirrors the racial breakdown of their 'metropolitan statistical area,'" and is unconstitutional under applicable legal standards.

In addition, the Commission invited comment on its belief that the FCC has ample statutory authority to retain the anti-discrimination provisions of the broadcast EEO rules. Moreover, the Commission stated its belief that it also has statutory authority for the proposed outreach requirements. It said it believes that equal employment of minorities and women helps prevent unlawful discrimination, furthers the goal of diversity of programming, and is linked to, and enhances, the prospects for minority and female ownership. Further, the Commission believes that Congress has ratified its authority to promulgate these rules.

The FCC's proposed EEO rule revision would require outreach efforts designed to ensure that minority and female applicants are informed of, and have an opportunity to apply for, openings at broadcast stations. The proposal would not contain requirements for employers to assess how the composition of their employment profiles compares with the composition of the local labor force nor would the Commission use such a comparison (sometimes referred to as "processing guidelines") when assessing an entity's EEO program.

The Commission also asked for comment on its proposal to reinstate the statistical employment data collection contained in the Annual Employment Report, but made clear that these data would only be used to monitor industry trends.

The FCC also proposed to modify its EEO rules for cable and MVPD entities to make them consistent with any new broadcast EEO rules. The Commission stated that although the Lutheran Church case did not address cable entities, the Commission's cable EEO rules have some of the same provisions that the court in Lutheran Church invalidated. Therefore, the Commission is proposing revised EEO rules for cable and MVPD entities.

The Commission said it was soliciting comments on specific recruitment requirements that could encourage entities to expand their pools of qualified applicants without creating any incentives to prefer minority or female applicants over other applicants. The FCC said the revised EEO rules being proposed today would thus meet the court's concerns and would be constitutional because the rules would operate only to expand the pool of candidates for a job opening and would not pressure entities to adopt racial preferences in hiring decisions.

The Commission asked for comments on whether it should provide administrative relief from EEO reporting and recordkeeping requirements for broadcast stations with small staffs or for stations in small markets. The Commission noted that it was interested in minimizing undue paperwork burdens consistent with maintaining an effective EEO program.

The Commission also said it was asking for comment on codifying in its rules that religious broadcasters may establish religious belief or affiliation as a bona fide occupational qualification for radio station employees. It said that it proposed that religious broadcasters in such cases would be expected to make reasonable good faith efforts to recruit minorities and women who are qualified on the basis of their religious affiliation.

Statements: Kennard & Tristani | Ness | Furchtgott-Roth | Powell
FCC 98-305: Text | WordPerfect | Acrobat Action by the Commission November 19, 1998, by Notice of Proposed Rulemaking (FCC 98-305). Chairman Kennard, Commissioners Ness, Powell and Tristani, with Commissioner Furchtgott-Roth concurring; Chairman Kennard and Commissioner Tristani issuing a joint statement, Commissioners Ness, Furchtgott-Roth and Powell issuing separate statements.

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News Media Contact: David Fiske (202) 418-0513
Mass Media Bureau Contact: Hope Cooper (202) 418-1450, Renee Licht (202) 418-26000