04-14121. Review of the Commission's Broadcast and Cable Equal Employment Opportunity Rules and Policies

AGENCY:

Federal Communications Commission.

ACTION:

Proposed rule.

SUMMARY:

The Commission solicits comment on its multichannel video programming distributor (“MVPD”) equal employment opportunity (“EEO”) rules for forms 395-A and 395-B. The Commission seeks comment on whether the use of the Confidential Information Protection and Statistical Efficiency Act of 2002 (“CIPSEA”) keep broadcaster's information confidential and whether the Act is constant.

DATES:

Comments are due July 14, 2004; Reply comments are due July 26, 2004.

FOR FURTHER INFORMATION CONTACT:

Lewis Pulley, Policy Division, Media Bureau, [phone] or [e-mail].

SUPPLEMENTARY INFORMATION:

This is a summary of the Media Bureau's Fourth Notice of Proposed Rulemaking (“4NPRM”) in MM Docket No. 98-204; FCC 04-103, adopted April 19, 2004, and released on June 4, 2004. The full text of this 4NPRM is available for inspection and copying during regular business hours in the FCC Reference Center, 445 Twelfth Street, SW., Room CY-A257, Portals II, Washington, DC, 20554, and may also be purchased from the Commission's copy contractor, Best Copy and Printing, Inc., Room CY-B402, telephone [phone], e-mail http://www.BCPIWEB.com. To request materials in accessible formats for people with disabilities (electronic files, large print, audio format and Braille), send an email to [e-mail] or call the Consumer & Governmental Affairs Bureau at 202-418-0531 (voice), 418-7365 (tty).

Synopsis of Fourth Notice of Proposed Rulemaking

1. Broadcasters have filed FCC Form 395-B, the Broadcast station Annual Employment Report, with the Commission for more than thirty years. Throughout the form's long history, the Commission has made it available to the public for inspection, primarily to accommodate Freedom of Information Act requirements. MVPDs have for years filed an Annual Employment Report on FCC Form 395-A, which unlike its broadcast equivalent, is required by statute to be made available for public inspection at the MVPD's central office and at every office where five or more full time employees are regularly assigned to work. The recently enacted CIPSEA allows agencies to collect information for statistical purposes under a pledge of confidentiality. If an agency adopts this procedure, the information collected pursuant to CIPSEA is exempt from release under the Freedom of Information Act and may not be disclosed in an identifiable form for any non-statistical purpose without the informed consent of a respondent.

2. We seek comment on whether a broadcaster's Form 395-B is the type of material to which CIPSEA could pertain. As noted, the data collected in the employment reports will be used to compile industry employment trend reports and reports to Congress, and will not be used to determine compliance with our EEO rules. This purpose appears to fall within the statutory definition of “statistical purpose.” We seek comment on what public policy goals might be advanced by making this information publicly available even if CIPSEA allows the Commission to keep it confidential. We seek comment on whether altering our approach would be consistent with Section 334 of the Communications Act. We also seek comment on whether altering our approach would be appropriate given the efforts of the Advisory Committee on Diversity for Communications in the Digital Age.

3. We seek comment as to whether Congress's clear directive that MVPD operators must make Form 395-A available for public inspection at their own facilities should be read to suggest an intent that the Commission, itself, also make Form 395-A publicly available. In light of the directive in Section 554(d)(3)(B) of the Communications Act for filers to make 395-A publicly available, we seek comment on whether CIPSEA even allows the Commission to keep MVPDs' Form 395-A confidential. In addition, does the Congressional directive that MVPDs make Form 395-A publicly available have any bearing on whether the Form 395-B should be made available to the public, as the Commission has done for more than thirty years?

4. Were the Commission to collect such information under a pledge of confidentiality, and CIPSEA were to apply, we seek comment on whether CIPSEA allows us to keep the identity of the Form 395-B filer (i.e., name, address and station) confidential while making the station's employment data public. Finally, we seek comment on the “tear off” option proposed by NAB and NASBA under which only the station's identifying information would be withheld from public inspection, and what such information would be identifying. We seek comment as to what policy objectives such an approach would further. We also seek comment as to whether use of this option would be consistent with CIPSEA or would violate the Federal Records Act.

Procedural Matters

3. Ex Parte Rules. With respect to the 4NPRM, this is a permit-but-disclose notice and comment proceeding. Ex parte presentations are permitted except during the Sunshine Agenda period, provided they are disclosed as provided in the Commission's Rules. See generally 47 CFR 1.1202, 1.1203, and 1.1206(a).

4. Comments and Reply Comments. Pursuant to § 1.415 and 1.419 of the Commission's rules, 47 CFR 1.415 and 1.419. Comments may be filed using the Commission's Electronic Comment Filing System (ECFS) or by filing paper copies. See Electronic Filing of Documents in Rulemaking Proceedings, 63 FR 24121 (1998).

5. Comments filed through ECFS can be sent as an electronic file via the Internet to http://www.fcc.gov/​e-file/​ecfs.html. Generally, only one copy of an electronic submission must be filed. If multiple docket or rulemaking numbers appear in the caption of this proceeding, however, commenters must transmit one electronic copy of the comments to each docket or rulemaking number referenced in the caption. In completing the transmittal screen, commenters should include their full name, Postal Service mailing address, and the applicable docket or rulemaking number. Parties may also submit an electronic comment by Internet e-mail. To get filing instructions for e-mail comments, commenters should send an e-mail to [e-mail], and should include the following words in the body of the message, “get form <your e-mail address>.” A sample form and directions will be sent in reply. Parties who choose to file by paper must file an original and four copies of each filing. If more than one docket or rulemaking number appears in the caption of this proceeding, commenters must submit two additional copies for each additional docket or rulemaking number. All filings must be sent to the Commission's Secretary, Marlene H. Dortch, Office of the Secretary, Federal Communications Commission, 445 Twelfth Street, SW., TW-A325, Washington, DC 20554.

6. Parties who choose to file by paper should also submit their comments on diskette. These diskettes should be submitted to: Wanda Hardy, 445 Twelfth Street, SW., Room 3-A669, Washington DC 20554. Such a submission should be on a 3.5 inch diskette formatted in an IBM compatible format using Word 97 or compatible software. The diskette should be accompanied by a cover letter and should be submitted in “read only” mode. The diskette should be clearly labeled with the commenter's name, proceeding (including the docket number in this case, MM Docket No. 98-204), type of pleading (comment or reply comment), date of submission, and the name of the electronic file on the diskette. The label should also include the following phrase, “Disk Copy—Not an Original.” Each diskette should contain only one party's pleadings, preferably in a single electronic file. In addition, commenters must send diskette copies to the Commission's copy contractor, Best Company and Printing, Inc., Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC 20554.

7. Comments and reply comments will be available for public inspection during regular hours in the FCC Reference Center, Federal Communications Commission, 445 Twelfth Street, SW., CY-A257, Washington, DC 20554, or at http://www.fcc.gov/​searchtools.html. Persons with disabilities who need assistance in the FCC Reference Center may contact Bill Cline at [phone] TTY, or [e-mail].

8. Initial Regulatory Flexibility Certification. The Regulatory Flexibility Act of 1980, as amended (“RFA”), requires that an initial regulatory flexibility analysis be prepared for notice-and-comment rule making proceedings, unless the agency certifies that “the rule will not, if promulgated, have a significant economic impact on a substantial number of small entities.” The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. A “small business concern” is one which (1) is independently owned and operated; (2) is not dominant in the field of operation; and (3) satisfies any additional criteria established by the Small Business Administration (SBA).

9. Initial Paperwork Reduction Act of 1995 Analysis. This document seeks comments on the Commission's policies regarding public access to data contained in FCC Forms 395-A and 395-B. The policy changes proposed relate exclusively to the issue of whether the Commission should make the data in these forms available for public inspection. Any changes made as a result of the comments received in response to this notice will not have a significant economic impact on a substantial number of small entities. Therefore, we certify that the proposals in this Notice, if adopted, will not have a significant economic impact on a substantial number of small entities.

10. Authority. This 4NPRM is issued pursuant to authority contained in Sections 1, 4(i), 4(k), 257, 301, 303(r), 307, 308(b), 309, 334, 403 and 634 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i), 154(k), 257, 301, 303(r), 307, 308(b), 309, 334, 403 and 554.

Ordering Clauses

11. Pursuant to the authority contained in Sections 1, 4(i), 4(k), 303(r), 334, 403, and 634 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i), 154(k), 303(r), 334, 403, and 554, this 4NPRM is adopted and part 73 and part 76 of the Commission's Rules are amended as set forth.

12. Comments are due July 14, 2004; Reply comments are due July 26, 2004.

13. The Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, shall send a copy of this 4NPRM including the Final Regulatory Flexibility Analysis and the Initial Regulatory Flexibility Certification, to the Chief Counsel for Advocacy of the Small Business Administration.

List of Subjects in 47 CFR Parts 73 and 76

• Cable television
• Equal employment opportunity

Federal Communications Commission.

Marlene H. Dortch,

Secretary.