Arguing that the FCC’s broadcast equal opportunity (EEO) rule is a mess, the Minority Media & Telecommunications Council (MMTC) has written to FCC Chairman Julius Genachowski asking for the Commission to suspend the EEO Rule for three months – so it can be fixed.
According to MMTC, it has been a full year since the FCC issued an EEO decision. The last time any such decisions were issued – three on June 29, 2009 – all were fines against “a diverse broadcaster for technical rule violations.” So, rather than going after broadcasters who actually discriminate, the FCC has been fining some of the most diverse operators in the industry (Cox, CMP Media and Entravision in the three cases cited), including some that are minority owned or controlled. Meanwhile, other cases have gone unprosecuted because the station licenses had already been renewed or the FCC missed its own statute of limitations.
“In short, FCC EEO enforcement has no apparent mission, no focus, no data for evaluation, and no results except sanctioning the innocent while ignoring the guilty. Such a program only creates the false security that comes when the constable is on duty yet asleep,” MMTC charged.
Thus, MMTC says a three month suspension of the EEO rule is called for. During those three months, MMTC wants the FCC to take 10 steps to improve the EEO enforcement program:
1. Relocate the EEO staff from the Media Bureau to the Enforcement Bureau.
2. Triple the number of EEO enforcement staff – thus bringing it to mid-1990’s levels – and restore to the EEO enforcement unit the designation of being the “EEO Branch” instead of being the “EEO Staff.”
3. Revise the EEO rules to reflect the recommendations of the Diversity Committee.
4. Issue a Report and Order that adopts the Form 395 annual employment reports, and describes in plain language the proper and improper uses of Form 395 data.
5. Quintuple the percentage of licensees audited each year, conduct some of the audits with on-site review of hard-copy documentation, and revise the audit instrument so that it uncovers discriminatory applicant screening at the points of recruitment, interviewing and selection.
6. Ensure that the Office of General Counsel tracks EEO cases to ensure that the Commission never again misses a statute of limitations or renews a license while an EEO audit is underway.
7. Investigate whether licensees engage in the discriminatory practice of relying on word-of -mouth recruitment from a homogeneous workforce. First, determine the station’s recruitment practices; if recruitment is not broad, then obtain Form 395 data to determine whether the workforce from which recruitment is performed is homogeneous; if it is, designate the case for an evidentiary hearing by specifying a Jacor issue under 47 U.S.C. §309(e).
8. Ensure that broadcasters with very diverse workforces, who obviously had to have operated broad recruitment programs to generate such a workforce, are not penalized anymore under the EEO program.
9. Work with the Equal Employment Opportunity Commission (EEOC) to update the agencies’ Memorandum of Understanding14 to ensure that the FCC will special-audit licensees and report its findings to the EEOC and the public, and that when the EEOC receives a serious complaint of discrimination by a broadcaster, the FCC will specialaudit the licensee. Further, when a standard FCC EEO audit uncovers possible discrimination, the FCC should notify the EEOC.
10. Using the procedures authorized by 47 U.S.C. §403, including subpoena power, designate an ALJ to conduct an inquiry into how minorities came to be purged from radio journalism and why minority representation in television journalism is in decline. Upon receiving the results of the inquiry, the Commission should act promptly to ensure that systemic discrimination never again takes root in the broadcasting or any other FCC-regulated industry.