[Federal Register Volume 59, Number 116 (Friday, June 17, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-14771]
[[Page Unknown]]
[Federal Register: June 17, 1994]
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FEDERAL COMMUNICATIONS COMMISSION
[DA 94-553]
Interpretive Ruling on Broadcast Annual Employment Report
AGENCY: Federal Communications Commission.
ACTION: Interpretive Ruling; extension of deadline for filing FCC Form
395-B for 1994.
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SUMMARY: This Interpretive Ruling explains how the Federal
Communications Commission requires radio stations involved in time
brokerage or multiple ownership circumstances to report employees on
Annual Employment Reports, FCC Form 395-B. For licensees affected by
the Interpretive Ruling, the Ruling extends the deadline for filing
1994 Form 395-B's. The former deadline of May 31, 1994, is extended to
July 18, 1994. The FCC requires radio stations to file a Form 395-B
each year listing station employees for Equal Employment Opportunity
purposes. The Interpretive Ruling provides greater guidance about how
employees should be reported by stations involved in a time brokerage
or by multiple stations owned by the same licensee in the same market.
EFFECTIVE DATE: June 17, 1994.
SUPPLEMENTARY INFORMATION:
In the Matter of: Petition for Issuance of Interpretive Ruling
Concerning FCC Form 395-B, Broadcast Annual Employment Report.
Interpretive Ruling
Issued: May 27, 1994.
Released: May 27, 1994.
By the Chief, Mass Media Bureau.
I. Introduction
1. The Mass Media Bureau has before it a petition for an
interpretive ruling regarding how the employees of radio station time
brokers should be reported on the FCC Form 395-B, Annual Employment
Report for broadcast stations.\1\ The request was filed on May 2, 1994,
by the law firms of Arent, Fox, Kintner, Plotkin & Kahn; Hardy & Carey;
and attorney David Tillotson (the Firms).\2\ The Firms allege that
there are a variety of different factual situations involving time
brokerage and different ways in which employees engaged in providing
brokered services could be reported. They request that the Commission
issue an interpretive ruling to clarify how employees in various
situations should be reported.
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\1\Time brokerage is defined in 47 CFR 73.3555(a)(3)(iv) of the
Commission's rules as ``the sale by a licensee of discrete blocks of
time to a `broker' that supplies the programming to fill that time
and sells the commercial spot announcements in it.'' A cognizable
time brokerage agreement (often referred to as a ``Local Marketing
Agreement'' or ``LMA'') is a time brokerage agreement between two
broadcast licensees of stations whose principal community contours
overlap and under which more than 15% of broadcast time per week of
one station is brokered by the other station. If a brokerage
agreement is entered into by (1) a licensee and a non-licensee
broker or (2) between two licensees in separate markets, the
agreement is not cognizable under Commission rules. See 47 CFR
73.3555(a)(2)(i).
\2\In addition, the National Association of Broadcasters filed a
Statement on May 5, 1994, in support of the Firms' petition.
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II. Pleadings
2. The Firms describe several specific situations and ask how
reports should be filed for each. In the first example, a broker is a
licensee of another station in the same market as the brokered station
to which the broker provides programming services. In this case, all
employees are employed by the licensee-broker, but some employees'
duties relate exclusively to the broker's station, some to the brokered
station, and some to both stations. The Firms then analyze the merits
of various reporting methods. In the second example, a broker is not a
licensee of a station in the same market as the brokered station.
Moreover, the broker may or may not be a Commission licensee. Again,
while all employees are employed by the broker, their duties relate
variably to the broker's station (in the case of licensee-brokers), the
brokered station, or both. The Firms, as before, offer their analyses
of various reporting methods. Finally, in a third example, the Firms
ask how shared employees should be reported where stations in the same
radio service are under common ownership or control in the same market,
such as occurs where a licensee owns two FM stations in the same
market.
III. Discussion
3. In response to petitioners' request, this Interpretive Ruling
sets forth general Commission policy on how to report employees on Form
395-B for broadcast stations involved in time brokerage arrangements.
As a general matter, we believe that, consistent with the EEO Rule
which measures licensee performance, employees hired in concert with
time brokerages and LMAs should be reported on the Form 395-B submitted
by the licensee that employs them. Thus, in the first example above,
all employees hired and employed by the licensee-broker and whose
duties include providing program services or other duties in support of
the LMA should, as a general matter, be reported on the 395-B filed by
the licensee-broker's station. This is because all such employees are
either employed by, or under the control of, the licensee-broker. The
licensee of the brokered station should file a Form 395-B for any
employees it may retain or hire after commencement of the brokerage
agreement.
4. In the second example above, whether the broker is a licensee or
not, there is no cognizable brokerage agreement because the broker does
not hold an interest in a station in the same market as the brokered
station. See 47 CFR 73.3555(a)(2)(i). However, where the broker is a
licensee, the reporting requirements are, as a general matter, no
different from the first example above. The licensee of the brokered
station should file a Form 395-B for any employees it may retain or
hire after commencement of the brokerage agreement. Similarly, the
licensee-broker should file a Form 395-B for its employees. If
personnel employed by the licensee-broker perform duties for both
stations, the licensee-broker should report them on its Form 395-B. If
the licensee-broker employes personnel to work at the brokered station,
they should also be reported on the Form 395-B for the licensee-
broker's station.
5. These policies are not inconsistent with prior Commission
statements in Policy Statement on Part-time Programming, 82 FCC 2d 107,
115 (1980) (Policy Statement). The Policy Statement only considered
whether employees of a non-licensee time broker should be reported by
licensees selling blocks of their airtime to brokers. The Commission
declined to require licensees of brokered stations to report employees
of a non-licensee broker as part of the EEO employment profile. Our
ruling here merely indicates that, as a general matter, time brokers
who are themselves licensees should report individuals under their
employ, whether they work at the licensee-broker's station or a station
operated by the broker under an LMA. The two rulings are, therefore,
fully consistent. In addition, the Policy Statement was directed at the
typical time brokerage existing in 1980, which involved the brokerage
by non-licensees of short, discrete periods of broadcast time. The more
common practice today is for large blocks of time or the entire
programming schedule of a station to be brokered. When that practice is
engaged in by a licensee-broker, we believe it generally appropriate
that the licensee-broker comply with the EEO Rule and its attendant
reporting obligations.
6. In accordance with the reasoning set forth in Policy Statement,
if the broker is not a licensee, as in the second example above, the
broker is not required to file a Form 395-B. However, we will closely
watch to see that such agreements are not used to circumvent our EEO
Rule and policies.
7. Turning to the third example outlined by petitioners involving
the reporting of shared employees of commonly owned stations in the
same radio service in the same market, current data processing
technology available to the Commission does not allow for the
employment profile of more than one station to be reported on the same
Form 395-B except in cases involving an AM/FM combination. Therefore,
if a licensee owns two FM stations or two AM stations in the same
market, the licensee should file a separate report for each station,
dividing employees between the stations according to their primary
duties. If the duties of one or more employees involve work for both
stations equally the licensee should file a Form 395-B for one station
with all employees from both stations listed. It should then file a
separate Form 395-B for the other station explaining that the station's
employees are reported on the Form 395-B filed for the licensee's other
station in the same market. We expect the licensees of multiple
stations in the same market to file the Form 395-B attributing
employees to the stations according to the manner in which the stations
operate.
IV. Conclusion
8. Accordingly, it is ordered that this Interpretive Ruling is
issued, to be effective upon publication in the Federal Register.\3\
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\3\See 5 U.S.C. Section 553(d)(2).
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9. It is further ordered that the May 31, 1994, due date for the
filing of 1994 Form 395-B is extended for those affected by this
Interpretive Ruling until 30 days after publication of this
Interpretive Ruling in the Federal Register. Licensees who have already
filed their 1994 Form 395-B may amend them prior to that date.
Federal Communications Commission.
Roy J. Stewart,
Chief, Mass Media Bureau.
[FR Doc. 94-14771 Filed 6-16-94; 8:45 am]
BILLING CODE 6712-01-M
