[Federal Register Volume 63, Number 45 (Monday, March 9, 1998)]
[Rules and Regulations]
[Pages 11376-11378]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-5939]
=======================================================================
-----------------------------------------------------------------------
FEDERAL COMMUNICATIONS COMMISSION
47 CFR PART 73
[MM Docket No. 96-16, FCC 98-19]
Revision of Broadcast EEO Rule Enforcement
AGENCY: Federal Communications Commission.
ACTION: Final rule; policy statement.
-----------------------------------------------------------------------
SUMMARY: This Order and Policy Statement adopts a change in the
Commission's enforcement of the Equal Employment Opportunity (EEO) Rule
for religious broadcasters. The announced change is similar to
suggestions made by some commenters in response to the Commission's
Order and Notice of Proposed Rule Making (NPRM), MM Docket No. 96-16,
which requested comment on ways to improve the Commission's EEO Rule
and policies to offer relief to distinctly situated broadcasters
without undermining the effectiveness of its EEO program. The
Commission will now permit religious broadcasters, as
[[Page 11377]]
defined in the Order and Policy Statement, to establish religious
belief or affiliation as a job qualification for all station employees.
The Commission believes that this action will eliminate the potential
danger of impermissible governmental interference with a religious
broadcaster's judgment in the conduct and definition of its religious
affairs.
DATES: Effective April 8, 1998.
FOR FURTHER INFORMATION CONTACT: Renee Licht, Deputy Chief, Mass Media
Bureau. (202) 418-2600.
SUPPLEMENTARY INFORMATION: This is a synopsis of the Commission's Order
and Policy Statement, FCC 98-19, adopted February 5, 1998, and released
February 25, 1998.
The complete text of this Order and Policy Statement is available
for inspection and copying during normal business hours in the FCC
Reference Center (Room 239), 1919 M Street, NW., Washington, DC, and
also may be purchased from the Commission's copy contractor,
International Transcription Services, Inc., at (202) 857-3800, 1231
20th Street, NW, Washington, DC 20036.
Synopsis of Order and Policy Statement
1. In the Order and Policy Statement, the Commission modifies
enforcement of its broadcast Equal Employment Opportunity (EEO) Rule
with respect to religious broadcasters. Responding to the Commission's
request in Order and Notice of Proposed Rule Making (NPRM), MM Docket
No. 96-16, 11 FCC Rcd 5154 (1996), 61 FR 9964, March 12, 1996, for ways
to improve its EEO Rule and policies to afford relief to distinctly
situated broadcasters, some commenters requested that the Commission
permit religious licensees to establish religious affiliation or belief
as a bona fide occupational qualification for all positions at their
stations. The Commission's prior policy was to allow religious
broadcasters a limited exemption from the Commission's prohibition of
religious employment discrimination only for employees hired to espouse
religious views over the air. Upon review of this matter, the
Commission concludes that its policy should be expanded to permit
religious broadcasters to use religious belief or affiliation as a job
qualification for all station employees. The Commission believes that
this action will eliminate the potential danger of impermissible
governmental interference with a religious broadcaster's judgment in
the conduct and definition of its religious affairs.
2. This action should be considered binding as to radio licensees
and permittees. It should be considered a non-binding policy statement
for television licensees and permittees because section 334 of the
Communications Act of 1934, as amended, 47 U.S.C. 334, prohibits
revisions of EEO regulations concerning television licensees and
permittees.
3. For these purposes, a ``religious broadcaster'' is defined as a
licensee which is, or is closely affiliated with, a church, synagogue,
or other religious entity, including a subsidiary of such an entity.
Commission determination as to whether a licensee is a ``religious
broadcaster'' will be made on a case-by-case basis, based upon the
evaluation of certain characteristics of the religious entity.
4. Some commenters to the NPRM are concerned that expanding the
Commission's current policy concerning religious broadcasters would
lead to racial and ethnic discrimination and have a negative impact on
equal opportunity in the industry. However, in the Order and Policy
Statement, the Commission emphasizes that religious broadcasters are
still required to operate their stations in the public interest, as
defined in the Commission's rules and policies. Therefore, religious
broadcasters are not permitted to engage in employment discrimination
against women and minorities and are still required to comply with
sections 73.2080(b) and (c) of the Commission's Rules, 47 CFR
73.2080(b) and (c), requiring broadcasters to maintain a positive,
continuing program of specific practices designed to ensure equal
employment opportunity, for persons who share their faith, in every
aspect of station employment and practice. Religious broadcasters are
also still required to file EEO Forms 396-A, 396, and 395-B and their
EEO programs will continue to be subject to examination by the
Commission at renewal time, as well as other relevant periods, to
determine compliance with the EEO Rule.
Initial Paperwork Reduction Act of 1995 Analysis
The decision herein has been analyzed with respect to the Paperwork
Reduction Act of 1995, Public Law No. 104-13, and found to impose or
propose no modified information collection requirement on the public.
Final Regulatory Flexibility Certification
As required by the Regulatory Flexibility Act (``RFA''),
1 see 5 U.S.C. 603, an Initial Regulatory Flexibility
Analysis (``IRFA'') was incorporated in the NPRM. 2 The
Commission sought written public comments on the proposals in the NPRM,
including the IRFA.
---------------------------------------------------------------------------
\1\ The RFA, see 5 U.S.C. 601 et. seq., has been amended by the
Contract With America Advancement Act of 1996, Public Law No. 104-
121, 110 Stat. 847 (1996) (CWAAA). Title II of the CWAAA is the
Small Business Regulatory Enforcement Fairness Act of 1996.
\2\ 11 FCC Rcd at 5183.
---------------------------------------------------------------------------
Joint Commenters 3 criticize the IRFA for not stating
that the proposals in the Notice could adversely affect some non-
licensee entities including Black colleges, community groups which
refer job candidates, discrimination victims, individual job
applicants, petitioners to deny, and members of the listening and
viewing audience. Joint Commenters maintain that the IRFA failed ``to
mention the limited resources available to each of these parties in
meeting significant burdens which would be imposed on them by cutbacks
in EEO enforcement.'' 4 Joint Commenters' arguments are
without merit. In the IRFA, the Commission did not indicate the
economic impact of a rule change on any entity, stating that it ``was
unable to assess at this time what, if any, economic impact the
proposed rule change would have on small business entities'' and that a
full assessment of the potential impact would be made, if applicable,
at the final rulemaking stage. 5 Furthermore, the entities
described by Joint Commenters would not be discussed in the Regulatory
Flexibility Analysis at any stage in this proceeding because such
analysis is reserved for entities directly regulated and affected by
the subject rule of a proceeding and the entities discussed by Joint
Commenters are not so regulated and affected. See Mid-Tex Electric
Cooperative, Inc. v. Federal Energy Regulatory Commission, 773 F.2d 327
(D.C. Cir. 1985).
---------------------------------------------------------------------------
\3\ Joint Commenters consist of the following organizations that
filed their comments together: Minority Media Telecommunications
Council, Office of Communication of the United Church of Christ,
National Council of Churches, American Civil Liberties Union,
American Hispanic Owned Radio Association, Association of Black
Owned Television Stations, Black Citizens for a Fair Media, Black
College Communications Association, Chinese for Affirmative Action,
Cultural Environment Movement, Fairness and Accuracy in Reporting,
Hispanic Association on Corporate Responsibility, League of United
Latin American Citizens, Minority Business Enterprise Legal Defense
and Education Fund, Inc., National Association for the Advancement
of Colored People, National Association of Black Owned Broadcasters,
National Bar Association, National Hispanic Media Coalition,
National Rainbow Coalition, National Urban League, Operation PUSH,
and Women's Institute for Freedom of the Press.
\4\ Comments of Joint Commenters at 119.
\5\ 11 FCC Rcd at 5183-84.
---------------------------------------------------------------------------
We now believe that, pursuant to the RFA, see 5 U.S.C. 605(b), we
can certify
[[Page 11378]]
that the action taken in this Order and Policy Statement, as
distinguished from the broader proposals contained in the entire NPRM,
will not have a significant economic impact on a substantial number of
small entities. Other issues and proposals will be addressed in a
Report and Order to be issued at a later date. This action simply
allows religious broadcasters to establish religious affiliation or
belief as a bona fide occupational qualification for all station
positions, an action which will not have a significant economic impact.
Religious broadcasters are still required to ensure equal employment
opportunity in every aspect of station employment policy and practice
for persons who share their faith. The Commission will publish this
certification in the Federal Register, and will provide a copy of the
certification to the Chief Counsel for Advocacy of the Small Business
Administration. The Commission will also include the certification in
the report to Congress pursuant to the RFA, see 5 U.S.C. 801.
List of Subjects in 47 CFR Part 73
Radio broadcasting, Television broadcasting.
Federal Communications Commission.
Magalie Roman Salas,
Secretary.
[FR Doc. 98-5939 Filed 3-6-98; 8:45 am]
BILLING CODE 6712-01-P
