[Federal Register Volume 59, Number 52 (Thursday, March 17, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-6228]
[[Page Unknown]]
[Federal Register: March 17, 1994]
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FEDERAL COMMUNICATIONS COMMISSION
[FCC 94-27]
EEO Policy Statement
AGENCY: Federal Communications Commission (FCC).
ACTION: Policy statement.
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SUMMARY: This Policy Statement establishes non-binding guidelines for
assessing forfeitures for violations of the Federal Communications
Commission's (FCC's) broadcast Equal Employment Opportunity (EEO) rule.
The EEO rule prohibits discrimination and requires affirmative action
by broadcast stations in hiring. The new guidelines provide greater
guidance to stations and the public about what sanction may result from
different types of EEO violations.
EFFECTIVE DATE: January 31, 1994.
FOR FURTHER INFORMATION CONTACT:
Roderick K. Porter at 202-632-6460.
SUPPLEMENTARY INFORMATION:
Adopted: January 31, 1994; Released: February 1, 1994.
By the Commission: Commissioner Quello issuing a statement.
I. Introduction
1. In this Policy Statement, we establish non-binding guidelines
for assessing forfeitures for violations of the Commission's broadcast
Equal Employment Opportunity (EEO) rules.\1\
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\1\See 47 C.F.R. 73.2080.
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2. The Commission's broadcast EEO rules and other policies which
promote participation by minorities and women in the broadcast industry
are vitally important. They further the Commission's goals of promoting
diversity of programming on broadcast stations. See NAACP v. FPC, 425
U.S. 662, 670 n. 7 (1975); Metro Broadcasting, Inc. v. FCC, 497 U.S.
547 (1990) (Metro). And, as the Supreme Court has noted,
``[s]afeguarding the public's right to receive a diversity of views and
information over the airwaves is * * * an integral component of the
FCC's mission.'' Metro, 497 U.S. at 548. We reaffirm our commitment to
this bedrock goal underlying our broadcast EEO rules and believe that
the Policy Statement we adopt here will further achievement of that
goal.
3. In addition to promoting program diversity, our broadcast EEO
rules enhance access by minorities and women to increased employment
opportunities. Increased employment opportunities are the foundation
for increasing opportunities for minorities and women in all facets of
the communications industry, including participation in ownership.\2\
Those who have access to employment opportunities are able to develop
experience and expertise that can be put to beneficial use in a variety
of communications enterprises, in a variety of ways. Thus, by combating
discrimination and other arbitrary barriers to employment, we
contribute to the development of the broadcast industry and ultimately
promote the further development of the broader communications
infrastructure.\3\
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\2\The Commission seeks to promote minority ownership of
broadcasting facilities. See Commission Policy Regarding the
Advancement of Minority Ownership in Broadcasting, 92 FCC 2d 849
(1982); Statement of Policy on Minority Ownership of Broadcasting
Facilities, 68 FCC 2d 979 (1978).
\3\We note, in this regard, that Section 309(j)(4)(C) of the
Communications Act of 1934, as amended, directs the Commission to
promote economic opportunity in competitive bidding among applicants
proposing to use the spectrum ``by disseminating licenses among a
wide variety of applicants * * * including businesses owned by
members of minority groups and women.''
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II. Background
4. In 1989, Congress amended the Communications Act of 1934 to
increase substantially the maximum dollar amounts of forfeitures the
Commission could impose on broadcasters under Section 503(b) of the
Act.\4\ The Commission's forfeiture rule has been amended to reflect
the higher forfeiture amounts. 47 CFR 1.80(b)(1).
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\4\Pub. L. No. 239, 101st Cong., lst Sess. 103 Stat. 2131 (1989)
(amending, among other sections, 47 U.S.C. 503(b)). Amended Section
503(b) provides the Commission with authority to assess forfeitures
of up to $25,000 for each violation or each day of a continuing
violation against broadcasters, with a limit on forfeitures for
continuing violations involving a single act or failure to act of
$250,000 for broadcasters.
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5. On August 1, 1991, in order to assist both the Commission and
licensees in adjusting to the statutory increases, the Commission
released its Policy Statement, Standards for Assessing Forfeitures
(1991 Policy Statement).\5\ The 1991 Policy Statement provided general,
non-binding guidance regarding the assessment of forfeitures. It
established base forfeiture amounts for a wide range of violations. For
violations of broadcast EEO rules, the Commission set a base amount of
$12,500. The 1991 Policy Statement also provided that the base
forfeiture amount for any violation could be increased or decreased by
applying adjustments to the base amount as relevant to the facts in any
particular case. On August 12, 1993, the Commission released its most
recent forfeiture guidelines.\6\ Among other actions, the 1993 Policy
Statement deleted the broadcast EEO violation category and indicated
that the Commission would issue a further policy statement on broadcast
EEO forfeiture matters at a later date.\7\
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\5\6 FCC Rcd 4695 (1991), modified in part on recon., 7 FCC Rcd
5339 (1992), petition for review pending sub nom. USTA v. FCC, No.
92-1321 (DC Cir. filed July 30, 1992).
\6\8 FCC Rcd 6215 (1993) petition for review pending sub nom.
USTA v. FCC, No. 93-1526 (DC Cir. filed August 23, 1993) (1993
Policy Statement).
\7\Id. at n.1. The forfeiture amount for violations of the
Commission's cable EEO rules is set at $500 per day by section 634
of the Act and is addressed in the 1993 Policy Statement.
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III. Discussion
6. The Policy Statement we adopt here, as set forth in the
Appendix, re-establishes the base forfeiture amount for violations of
the broadcast EEO rules at $12,500. It also provides guidance on what
situations may generally lead to such a forfeiture. In addition, it
describes upward and downward adjustment criteria that may be used to
adjust the forfeiture in particular cases. The adjustment guidelines
reflect the factors set forth in Section 503(b) of the Act, Sec. 1.80
of our rules and case precedent. See 47 U.S.C. 503(b)(2)(D); 47 CFR
1.80(b)(4). All of these factors will not necessarily be relevant in
each individual case and other adjustments may also be made as
appropriate in particular cases. The Appendix also provides guidance
regarding when short-term renewals may be appropriate in particular
cases. We believe that these guidelines will assist the Commission and
its staff in determining broadcast EEO forfeitures in a generally
consistent manner that furthers the public interest while nevertheless
ensuring that the Commission and the staff retain the discretion to
decide each case based on the specific facts and circumstances at
issue. At the same time, we believe these guidelines will give
licensees and the public greater guidance regarding which types of
forfeitures may result from particular types of EEO violations.
7. Finally, we stress that we do not intend this Policy Statement
to limit our flexibility. In particular cases, forfeitures that are
higher or lower than those reflected by the guidelines may be imposed.
In this regard, what we have said in connection with our prior
forfeiture policy statements applies here as well:
[T]he Policy Statement simply describes the general approach the
Commission may take in forfeiture cases and is not binding on any
licensees or the Commission. The Policy Statement does not impose
any obligations on [licensees] or require the Commission to issue a
forfeiture of any particular magnitude--or any forfeiture at all * *
*.
* * * * *
[W]e reiterate that while the Policy Statement may guide us and the
staff in particular cases, we do not intend for the Commission or the
staff to be bound by it. In addition, both the Commission and the staff
intend to apply these guidelines flexibly. In particular, we and the
staff remain committed to deciding every forfeiture case on the basis
of the specific facts and equities presented in the record of that
case.
7 FCC Rcd at 5339 (internal citations omitted).
IV. Conclusion
8. Accordingly, it is ordered that this Policy Statement is
adopted, to the effective upon adoption.
9. The notice and comment and effective date provisions of the
Administrative Procedure Act do not apply to this Policy Statement. 5
U.S.C. 553(b)(A), (d)(2).
Federal Communications Commission.
William F. Caton,
Acting Secretary.
Appendix
Failure to recruit so as to attract $12,500 base forfeiture
an adequate pool of minority/ (accompanied by reporting
female applicants or hires for at conditions)
least 66% of all vacancies during
the license term being reviewed
(Evidence of this violation will
include (1) inadequate record-
keeping and/or (2) inadequate self-
assessment throughout the license
term).
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Upward Adjustment Criteria
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I. Egregious Misconduct
A. Failure to recruit so as to $6,250 upward adjustment.
attract an adequate pool of
minority/female applicants or
hires for at least 33% of all
vacancies reported for the
license term being reviewed.
Efforts are evaluated both for
the station's staff overall
and for upper four job
categories.
(EEO programs achieving only
this level of compliance will
warrant a short-term renewal,
irrespective of whether other
upward adjustments for
``egregiousness'' factors are
present, if the percentage of
vacancies for which the
licensee failed to recruit, or
the percentage of pools
containing minorities, falls
below 33% and other factors--
e.g., use and productivity of
recruiting sources, use and
productivity of minority-
specific sources; evidence of
self-assessment--are absent or
particularly inadequate)
B. Large number of hiring
opportunities that did not
translate into an adequate
pool of minority/female
applicants or employees hired.
--``Large number'' means $6,250 upward adjustment (Base plus
hiring opportunities equal 50%)
to at least the average
number of employees on the
full-time staff, with a
minimum of 25 hiring
opportunities
--``Substantial number'' Additional upward adjustment of 50-
means hiring opportunities 90% of base.
equal to three times the
number of full-time staff,
with a minimum of 25
hiring opportunities.
C. Large pool of minorities/
women in the relevant labor
force did not translate into
an adequate pool of applicants
minority/women or employees
hired
Analysis will focus on (1) the
overall percentage of
minorities in the relevant
labor force and (2) the
presence of a single minority
group constituting a
significant percentage of that
labor force.
--If a licensee has a $6,250 to $11,250 upward adjustment
relevant labor pool of at (base plus 50-90%)
least 20 percent
minorities or a single
minority group constitutes
at least 10 percent of the
labor force.
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Short term renewals: Short term renewals will be assessed if (A), (B) or
(C) are applied in any combination of two or more upward adjustments.
In addition, short term renewals also will be warranted where the
specific criteria set forth in (A) above are present. The presence of
the mitigating factors described in Section II below are grounds for
not issuing short term renewals.
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D. Prior EEO violations that --If reporting conditions were
resulted in previous sanction previously imposed, the licensee
or remedy receives reporting conditions and
the base forfeiture plus a 90%
upward adjustment in addition to
any other upward adjustments
warranted by these guidelines
(including short-term renewal)
--If reporting conditions plus a
forfeiture were previously
imposed, the licensee receives
reporting conditions, the base
forfeiture plus a 90% upward
adjustment, any other upward
adjustments warranted by these
guidelines, and a short-term
renewal.
--If previous sanction and remedies
included a short-term renewal, the
renewal will be designated for
hearing and possible forfeiture of
$250,000.
E. EEO violations with respect $11,250 upward adjustment and a
to both minorities and women short-term renewal.
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Downward Adjustment Criteria
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II. Actual Hiring Experience
A. Minority hiring represents $6,250 downward adjustment.
50% of the minority profile of
the relevant labor force for
both overall employment and
upper four employment or
B. Minority hiring represents $6,250 downward adjustment and
100% of the minority profile presumptive removal of short-term
of the relevant labor force renewal. Evidence indicating the
for both overall employment substantial absence of an EEO
and upper four employment. program will rebut the presumption
of removal.
III. Employment Profile
C. Minority employment $6,250 downward adjustment.
represents 50% of the minority
profile of the relevant labor
force for both overall
employment and upper four
employment or
D. Minority employment $6,250 downward adjustment and
represents 100% of the presumptive non-issuance of short-
minority profile of the term renewal. Evidence indicating
relevant labor force for both the complete absence of an EEO
overall employment and upper program will rebut the presumption
four employment. of removal.
III(C) and III(D) apply if the
employment profile meets the
guidelines in 4 of 5 years for
a television renewal and 6 of
7 years for a radio renewal.
Where less than a full term
exists, the employment profile
must meet the guidelines for a
majority of the years reported
IV. Employment Profile and Hiring If II(B) and III(D) apply, a short-
Experience. term renewal would not be imposed.
V. Few Hiring Opportunities
A. 5 or fewer hiring $6,250 downward adjustment.
opportunities across the
entire license term.
B. 10 or fewer hiring $6,250 downward adjustment (Either
opportunities across the (A) or (B) will apply, but not
entire license term if the both)
average full-time staff during
the entire term exceeds 50
employees.
VI. Low Percentage of Minorities in
Relevant Population
Minorities constitute less than $6,250 downward adjustment and
6% of the relevant labor force. possible non-issuance of short-
term renewal depending upon staff
balancing of factors (number and
productivity of sources contacted,
number and productivity of
minority-specific sources, extent
to which licensee demonstrated
severe shortfall in recruitment).
VII. Inability to Pay (if raised Varies.
and demonstrated by the licensee).
VIII. Stand-alone station in $6,250 downward adjustment.
markets 200 and above as reflected
in the annual Abitron population
rankings.
Separate Statement of Commissioner James H. Quello
In the Matter of Standards for Assessing Forfeitures for Violations
of the Broadcast EEO Rules
The Commission today has voted an item that will prove to be a
turning point in the enforcement of our EEO rules. This Policy
Statement sets forth guidelines for assessing forfeitures for
violations of the Commission's EEO rules. 47 CFR 73.2080. As
reflected in the statement, the base amount for a forfeiture will be
$12,500, an amount that can be increased or decreased depending on
the facts of a given case. These higher forfeitures are a direct
result of the increases in forfeiture amounts imposed by Congress.
The guidelines are designed to ensure that these new, higher
forfeitures are assessed in a reasoned, consistent manner. For this
reason, and because I strongly support vigorous enforcement of our
EEO rules, I have voted in favor of this item.
However, at the same time, I am concerned that the Commission
may be entering the era of the telecommunications superhighway
wielding a club, rather than offering a hand, to broadcasters making
their way down the road. At the dawn of this new era, we are
imposing fines against 22 of 24 radio stations whose EEO records
were reviewed, in amounts ranging from $18,750 to $37,500. Short
term renewals are assessed against 21 of the 22 stations receiving
forfeitures. Radio broadcasters will be ``contributing'' a total of
$325,000 to the Federal Treasury as a result of our actions today. I
am troubled by the amount of these forfeitures and the increased use
of the short term renewal as a sanction. Yet, I recognize that, at
least with respect to the increased forfeiture amounts, Congress
increased our forfeiture authority.
I would have much preferred an approach that would have served
three compelling goals: (1) Ensuring compliance with our EEO rules
by imposing meaningful sanctions; (2) imposing these sanctions in
such a way so as not to cripple broadcasters in their travels along
the information superhighway; and (3) directly furthering the
underlying public interest purpose of the EEO rule--the increased
hiring and promotion of minorities and women in the broadcast
industry. Specifically, if we had the legal authority to do so, I
would have voted for a program that would have allowed monies
received as a result of violations or alleged violations of our EEO
or other rules to be placed into a fund and not into the Federal
Treasury. Funds received for EEO violations would be used for
training, educating, and providing placement services for minorities
and women interested in a career in broadcast. What better use for
the $325,000 in forfeitures imposed for violations of the EEO rules
today than for the very purpose underlying the rule?
[FR Doc. 94-6228 Filed 3-16-94; 8:45 am]
BILLING CODE 6712-01-M
