Broadcasters are pushing back hard on the Federal Communications Commission’s potential restoration of the mandate that broadcasters file data on the diversity of their workforces and that the data be available to the public, including by blaming Big Tech for some of broadcasting's diversity recruiting problems.

The annual collection of Form 395-B data on workforce composition (race and gender) has been in limbo for two decades. The filing of the form was suspended in 2001 following an appeals court decision vacating part of the FCC's Equal Employment Opportunity (EEO) requirements. Even though the FCC in 2004 revised the regulations on filing the form, broadcasters still did not have to file it due to unresolved issues about data confidentiality, issues the FCC is trying to resolve under chairwoman Jessica Rosenworcel.

In a notice of proposed rulemaking (NPRM) issued last July, the FCC said it wanted to “refresh” the record on Form 395-B data collection and related ”legal, logistical and technical issues” of potentially lifting the suspension.

But according to an ex parte filing at the FCC, executives from the National Association of Broadcasters, accompanied by 40 broadcasters — general managers, owners and others — from large and small companies and markets met with staffers for all the commissioners to push back on reinstating the form.

The broadcasters said they are all for improving diversity, but said restoring the form “would do nothing to help achieve this aim, and in fact, could distract the FCC and industry from more effective actions.”

They suggested one of those actions would be for the FCC to “boost interest” in TV and radio jobs given that broadcasters already were doing “everything in their power to attract and retain diverse talent” against a Big Tech industry draining the workforce.

“Several broadcasters described the hurdles they face in trying to attract a diverse pool of qualified job candidates, or for that matter, any pool of qualified applicants,” the broadcasters told the FCC. “In their recent experience, many job applicants — regardless of race, ethnicity, or gender — are more interested in working for one of the Big Tech companies or some other outlet they perceive as more relevant or cutting-edge, and that typically can afford to pay higher salaries.“

The NAB has also argued to the FCC that the form would pressure broadcasters to give preferential treatment to candidates of a particular gender or race.

Taking quite a different view of the issue was the Multicultural Media, Telecom and Internet Council (MMTC), which had its own meeting last week with FCC officials.

MMTC took issue with some of the broadcaster pushback, saying that while “career-building opportunities that extol the benefits of broadcast employment are useful, they are not a substitute for enforcement of the EEO Rule.”

While the broadcasters told the FCC that they “already do everything in their power to attract and retain diverse talent,” the MMTC didn't see it that way. “[N]o amount of career enthusiasm can overcome the ill-will of an employer who chooses not to recruit or equally employ people of color or women,” the group said.

As to the suggestion the form would force broadcasters into unfair hiring practices, the MMTC said: “The reporting of EEO data — whether anonymously or publicly — does not ’pressure‘ licensees to hire preferentially on the basis of race or gender.” ■

All 50 state broadcasters’ associations say they are all for diversity and inclusion in their industry, but the FCC‘s reinstatement of its Form 345-B diversity reporting requirement is not the way to get it and is, in fact, not even legal or at best on the fringes of legality.

In comments to the Federal Communications Commission, the associations said that they have been leaders of industry efforts to improve outreach and promote nondiscrimination in employment. But they have also stood with the National Association of Broadcasters to “against efforts to reinstitute and enable regulatory practices found by the U.S. Court of Appeals to be unconstitutional,” because the form used “impermissibly pressure[s] broadcasters when making a hiring decision to achieve an FCC-favored outcome.”

In launching the July notice of proposed rulemaking (NPRM), the FCC said that nothing in the court decisions on the agency‘s Equal Employment Opportunity (EEO) data collection — which were based on how the regulator used the data — prevents the FCC from simply collecting the data and making it publicly available.

Broadcasters have argued that releasing the data to the public will pressure them to adopt impermissible race- and gender-based hiring decisions, which the courts ruled out, including by those filing petitions to deny license renewals based on that data.

Back in July, the FCC signaled it was considering restoring the mandate that broadcasters file data on the diversity of their workforces and that the data be available to the public. Democrats in Congress, and at the FCC, have long called for a return to that data collection.

The annual collection of Form 395-B data on workforce composition (race and gender) has been in limbo for two decades. The filing of the form was suspended in 2001 following a U.S. Court of Appeals for the D.C. Circuit ruling vacating part of the FCC's EEO requirements. Even though the FCC in 2004 revised the regulations on filing the form, broadcasters still did not have to file it due to unresolved issues about data confidentiality.

The FCC asked if there were a way to make sure that the employment data was used only for analyzing industry trends and agency reports to Congress.

The FCC is also pondering making the Form 395-B information anonymous rather than attributable to a particular station, as was the case before the filing was suspended. The state associations and the National Association of Broadcasters have said that if, despite their warnings, the FCC proceeds to collect the info, as a Democratic majority is likely to do once it has its three Democrats installed, it should definitely be on an anonymized basis. That would help guard against the filing of petitions to deny based on the data, they said.

The FCC has sent out its first round of 2021 EEO audit letters to TV and radio stations, adjusted slightly to take into account the COVID-19 pandemic.

The FCC's Enforcement Bureau annually collects EEO data on approximately 5% of randomly selected TV and radio stations.

Also Read: FCC Issues MVPD EEO audit Letters

The bureau said that because of COVID-19, and its potential impact on station staffing and access to records, it was reducing the number of stations polled in this first round of letters (there are multiple rounds per year to reach the 5% mark) and it extending the deadline for responding to 60 days (Stations have until April 26.).

Among the data the FCC asks for is any pending or resolved complaints; how the station reviews its EEO recruitment to make sure it is effective, and resolve the issue if it is not; and its efforts "to analyze periodically its measures taken to examine pay, benefits, seniority practices, promotions, and selection techniques and tests to ensure that they provide equal opportunity and do not have a discriminatory effect."

It is not the first COVID-1-realated EEO adjustment. 

The FCC's Media Bureau last May, with input from the Enforcement Bureau, issued an order waiving the "broad outreach" requirements of its EEO rules when it comes to rehiring employees released due to the COVID-19 pandemic, saying that should not adversely impact the goal to ensuring employment nondiscrimination. 

The waiver applies for employees rehired within nine months of the date they were laid off, said the bureau. 

The EEO rules require broadcasters and MVPDs with more than five (broadcast) or six (MVPD) employees to "engage in broad recruitment outreach for all full-time job vacancies." 

MVPDS should check out the following list to see whether they will have an EEO reporting audit to deal with.

The FCC sends out periodic audit letters to a random selection of MVPDs, with responses due Nov. 20.

Even systems too small to be under the EEO program requirements must respond to the letter with a list of their employees (EEO programs only apply to systems with more than six full-time employees.

The FCC annually audits about 5% of all MVPDs (and broadcast stations).

On the list released Tuesday (Oct. 6), Mediacom and Comcast topped the systems getting letters.

The FCC's Media Bureau, with input from the Enforcement Bureau, issued an order waiving the "broad outreach" requirements of its EEO rules when it comes to rehiring employees released due to the COVID-19 pandemic, saying that should not adversely impact the goal to ensuring employment nondiscrimination. 

The waiver applies for employees rehired within nine months of the date they were laid off, said the bureau. 

The EEO rules require broadcasters and MVPDs with more than five (broadcast) or six (MVPD) employees to "engage in broad recruitment outreach for all full-time job vacancies." 

But because there will be so many vacancies due to COVID-19 layoffs, the FCC said in the public interest to allow the rehiring of released employees without conducting broad recruitment of competing candidates.  

"Given the unique importance of broadcasters and MVPDs in providing access to breaking news and critical information relating to the pandemic, the public interest, convenience, and necessity would be best served by encouraging these entities to maintain, or quickly resume, normal operations," the bureau said in announcing the waiver. "Facilitating the expeditious re-hiring of full-time employees laid off as a result of the pandemic to job vacancies created by the pandemic supports this important goal."

The Multicultural Media, Telecom & Internet Council is taking strong issue with broadcaster arguments that the FCC's EEO enforcement regime is burdensome as it is, does not need beefing up, and may even need loosening up. MMTC didn't even even respond to cable operator's arguments, though it gave that industry some credit for progress on diversity. 

That came in reply comments to the FCC on its inquiry into its EEO enforcement framework and MMTC suggestions for beefing it up. 

State broadcaster associations (STBAs) in their comments pointed to the lack of EEO actions against broadcasters, but MMTC turned that against the arguments for less regulation.  

Related: FCC Sends MVPDs Latest Round of EEO Audit Requests 

MMTC said STBA's assertion that the FCC “has not found a single broadcaster to have engaged in discrimination since the advent of the first EEO rule in 1969" is far from a clean bill of health. 

Instead, MMTC said, it is "a damning indictment of the agency’s enforcement program." 

That is because it said it is not conceivable that the broadcasting industry with its thousands of employees is the only industry in the nation whose work force contained " no racial or gender discriminators for the past 50 years." 

Related: FCC Extends EEO Comment Deadline 

It said the fact that no one ever got prosecuted, much less found to be liable for violations, is hardly an argument for weakening "the obviously insufficient EEO compliance program in place now." 

As to cable, MMTC did respond to the comments in a footnote: "We do not agree that additional requirements are unnecessary, especially as applied toward eliminating intentional discrimination. But the NCTA’s position [about cable's demonstrated commitment to diversity] is not unreasonable, and its support for the rule is appreciated. For over 30 years, the NCTA has exercised considerable moral leadership in leading its industry into nearly full compliance." 

Under a remand by a federal court, the FCC is required to consider the impact of its policies on broadcast diversity when undertaking its upcoming quadrennial review of media ownership rules, now an even stronger mandate with the court's decision two weeks ago to vacate earlier media deregulation by the FCC under chairman Ajit Pai because the FCC failed to adequately gauge that impact, though that was primarily about diverse ownership rather than employment. 

Before that recent court smackdown, Pai had signaled he had no plans to re-institute the form 395-B data collection of the racial makeup and gender of broadcast staffs, as Democrats have pushed for, but suggested he is not alone in his issues with that form. 

It has been well over a decade since the FCC collected information from broadcasters on the gender and diversity of their staffs--stretching over Republican and Democratic administrations--a point the FCC's Democratic commissioners made back in February when the FCC voted to eliminate an EEO reporting form. 

The holdup has been whether or not to keep that info confidential, with the data collection suspended since 2004. The Dems on the commission said that should have been resolved by now and the form reinstated, before the FCC weighs in again on diversity, as Pai had signaled it will do in the Further Notice of Proposed Rulemaking on EEO. 

Rep. Yvette Clarke (D-N.Y.), vice chair of the powerful House Energy & Commerce Committee, has asked the FCC to provide some grace period for FCC employees who may want to file EEO complaints.

She is not saying there were such complaints in the pipeline, only that the FCC needs to make sure the government shutdown does not make it harder for furoughed eployees to file them.

The FCC signaled in its Jan. 2 shutdown plan that it would continue to recieve and record (though not investigate) EEO complaints, but that the complaints have to be filed within 45 days of the alleged action.

Clarke, in a letter to the FCC Chairman Ajit Pai says that with the stress and uncertainty of the (almost month-long) shutdown, it is ureasonable that they might also lose their EEO protections if they miss that window.

She wants the FCC to at least consider waiving or extending the 45-day deadline, or explan itself if the response is the FCC does not have that authority. She wants a response by end of day Friday (Jan. 18), either an explanation of why the FCC can't or how it will inform the public of the change if it can and will.

Cable1Source, a software company that automates employment, personnel and job recruitment information to comply with FCC record-keeping requirements, will launch its service to cable operators in May. 

The new company is a companion to Broadcast1Source, which offers similar job-related services to TV and radio stations and groups. Both services are owned by McLeansville, N.C.-based Litéra Corp., a document management firm that creates software for corporate use, including  government filings.

"The new cable service will let companies manage all their EEO [Equal Employment Opportunity] compliance material and maintain all employment job listings and multiple recruiting lists," explained Lisa Fields, VP/GM of Cable1Source in an exclusive interview with Multichannel News. She said she knows of no comparable, comprehensive employment-reporting service that is currently available to cable operators.

In a preliminary trial, the Cable1Source software was tested at a mid-sized cable system (not identified) where human resources people had compiled and prepared the FCC reports manually. Field said the software generated a report in less than a minute, drawing on material that had been entered into the system at the time of each employment activity.  In comparison, the cable system's traditional manual method of gathering and preparing the report took about 160 hours (two people working for two weeks) for a comparable task, she said.

Field held discussions with some operators during the recent American Cable Association conference in Washington; it is believed that Cable1Source is exploring a relationship that would give ACA members discounts on access to the service. The company will also seek to develop alliances with state cable associations, similar to relationships that Broadcast1Source has with state broadcasting associations.

Like its 14-year-old Broadcast1Source predecessor, the new cable software package will provide a single-source solution to consistent record-keeping, self-monitoring and FCC audit preparedness, including automated creation of material for the FCC's mandated Public Inspection Files (ePIF) that are available on the FCC.gov site.

"Cable hires exponentially more people than radio or TV," Field said, explaining the value of her company's software to MSOs and individual cable systems. She cited FCC requirements such as the "Prong 1, 2 and 3" employment methods that encompass hiring efforts through traditional job application procedures, through relationships with recruiting agencies and through "supplemental outreach" programs such as job fairs or campus presentations.  All of these employment processes must be documented under the FCC rules, Field said.

"We'll let Cable1Source sync to FCC.gov so that it posts the required documents," Field added, noting that a new set of forms will be issued later this year, after approval by the Office of Management and Budget.  She said that the new software will be able to handle such paperwork via automated systems.

Although details about the Cable1Source software and pricing are not yet available, Field said that its core functions will resemble those available in the broadcast product.

"It can track and review all interviews, and it will alert you if you miss a step in the FCC process so that you can take actions from the [system's] dashboard," Field explained. The software can track and record interviews and store resumes and other elements of the hiring and employment process, she said.

Cable1Source also has the ability to track internships, mentoring and other work-related functions that the FCC seeks to document. The dashboard also allows cable operators to check their own self-auditing process for employment-related activities, in compliance with other FCC requirements, the company said.

Cable1Source, which is currently hosted at Litéra-contracted sites, is expected to move to a cloud-based secure service later this year.