EEO Audits Continue

The FCC's intention to conduct EEO Audits was announced when the Commission adopted the current EEO regulations. Accordingly, the fact of the program is not a surprise, although it was reasonably believed that the Commission would wait to launch its new program after it had ruled on the Petitions for Reconsideration filed by the State Broadcasters Associations, and by others. First, by requiring stations to respond to the EEO Audit Letters before the FCC acts on reconsideration, the FCC apparently intends to measure a station's compliance with the EEO regulations as they stand today even though numerous important and necessary changes and clarifications have been sought. Accordingly, it appears that the Commission is prejudging the outcome of the petitions for reconsideration. Second, it is fundamentally unfair to subject stations to possible sanction when compliance is a potentially moving target since on reconsideration certain aspects of the regulations should, and may very well, change through amendment and/or clarifications.

Notwithstanding the forgoing, every station receiving an EEO Audit Letter should treat the matter very seriously and consider engaging communications counsel early enough in the process so there is sufficient time for such counsel to evaluate all pertinent issues relative to the particular station. These are some of the very good reasons for exercising caution as a station begins to consider how to respond to the EEO Audit Letter that it has received.

1. The fact that a station has received an EEO Audit Letter is now public. The FCC intends that a station's response be made public. As a result, interested persons and groups will now have available a station's response to the letter if they are inclined to file a petition to deny or objection to an application filed by the station, or to file a complaint against the station requesting a formal EEO investigation.

2. The EEO Audit Letter specifically requires every response to be in the form of a "sworn statement" and to be executed by an officer of the "station." The person executing the response should be an officer of the licensee(s) and/or permittee(s) of the stations comprising the pertinent "employment unit." It is important to note that the FCC has expressly warned that fines, imprisonment, loss of license/construction permit (after costly evidentiary hearings), are available sanctions if a licensee/permittee were to knowingly and willfully make a false statement (misrepresentation) or conceal any material fact (lack of candor) in response to the EEO Audit Letter. In that regard, great care should be taken in deciding what documents and information should be provided and which documents and information need not be provided, as well as how descriptions and other information are to be set forth in the response. For example, as a general rule, a station should avoid making unqualified statements of fact, and certainly not unless the paper trail supporting the assertion is strong and unambiguous. As another example, to avoid any inconsistencies the draft response should be compared against what the station may have represented to the FCC in a previously granted or pending application for construction permit, assignment or transfer, or renewal of license, or in any other communication with the FCC. In addition, since the Annual EEO Public File Reports will be provided to the FCC with the response, the draft response should also take into account what those Reports say or do not say, again to avoid any inconsistencies.

3. The finding of an EEO violation could also have adverse consequences for a station's renewal. Under the Communications Act, before the FCC may grant a broadcast station's application for renewal of license, the Commission must find that (i) there have been no "serious violations" of the Communications Act or of the Commission's rules; (ii) there have been no other violations which, taken together, constitute "a pattern of abuse," and (iii) the station has served the public interest, convenience, and necessity, over the license term. If the FCC cannot make those findings, it is required to designate the renewal application for evidentiary hearing. No station subject to audit wants the FCC to find that it has violated any aspect of the EEO regulations for fear that a particular violation would be viewed as a "serious violation" or that one or more EEO-related violations, perhaps coupled with other types of violations, could be considered "a pattern of abuse." Accordingly, these risks increase the importance of determining how best to describe the station's EEO program and efforts in a way that is not only presents the station in the most favorable light, but also is fully responsive, truthful and candid. Toward that end, stations subject to the EEO audit should give immediate consideration to engaging communications counsel to help them craft an adequate and timely response.

4. Questions 2 and 3. ask whether the "employment unit" has five or more full-time employees or less than five full-time employees. The FCC's EEO Staff has informed us that the data used to answer these questions should be "as of" May 28, 2004, the date of the EEO Audit Letter.

5. Even if a station subject to audit has less than five full-time employees, and thus is only required (i) to provide a list of such employees, their job titles, and the number of hours they are regularly assigned to work per week, and (ii) to describe any pending or resolved EEO-related complaints, communications counsel should also be involved because of at least these potential issues. For example, does the station employ so few full-time employees that it may be in violation of the FCC's main studio rule that requires stations, inter alia, to maintain a "full-time management and staff presence?" Does the station's wage and hour accounting paperwork support the claim that the station employs less than five full-time employees? The FCC's EEO Staff has informed us that it is not looking for the names of full-time employees, only their job titles.

6. While each EEO Audit Letter was sent to a single station, the letter talks in terms of "employment units." Accordingly, the response should identify all stations comprising the employment unit by call letters, community of license and FIN. The response should take into account all stations which comprise the relevant "employment unit." For example, Question 3.(d) asks about pending and resolved complaints filed during the license term alleging unlawful employment discrimination by the "employment unit" in question. Accordingly, if there was no complaint involving the station to whom the EEO Audit Letter was addressed, but there was a complaint filed during the license term involving a different station in the same employment unit, the response should still disclose the fact of that complaint and the particulars.

7. While Questions 3.(f) and (g) are in fact based on the EEO regulations, stations may have difficulty in responding to them. With respect to Question 3.(f), it is not clear in what sense the Commission is using the words "effective" and "problems." Is the Commission talking about whether the station's recruitment sources are broad and inclusive, whether those sources are referring any applicants, whether any of the applicants are female and minority, whether any of the applicants are worthy of being interviewed, etc.? Question 3.(g) may suggest a routine structured program of periodic analysis that only the largest of stations may have the staff to perform. Smaller stations, where the owner knows what everyone's contribution is and what everyone's pay, benefits, etc. are, may in fact be engaged in the same analysis on an ongoing, but much less structured basis.

8. A station receiving an EEO Audit Letter should promptly place a copy of the letter in the public inspection files of the stations comprising the relevant "employment unit." Promptly after the response is sent to the FCC, a complete copy of the response should be placed in the same public inspection files in the folder containing a copy of the EEO Audit Letter.

9. The FCC's EEO staff has informed us that a station is not limited to "mailing" its response to the Commission, and may send it by overnight courier or have it hand-delivered to the Commission. According to the EEO Staff, if the response is mailed or over-nighted, the response must be postmarked or delivered to the overnight courier, as the case may be, no later than Monday, June 28 since June 27 is a Sunday, and thus a "holiday" under the FCC's regulations. Hand delivery should be accomplished on that Monday. Any station mailing its response should send it by certified mail, return receipt requested, using the address specified in the letter. If the response is to be over nighted, the overnight delivery should be addressed to Ms. Marlene H. Dortch, Secretary, Office of the Secretary, Federal Communications Commission, Attn. Policy Division, EEO Staff, Media Bureau, 9300 East Hampton Drive, Capitol Heights, MD 20743. If the response is to be hand-carried to the FCC, depending upon whether the response is in an envelope, the response should be submitted to Ms. Marlene H. Dortch, Secretary, Office of the Secretary, FCC, Suite 110, 236 Massachusetts Avenue, NE, Washington, DC 20002 (in envelope) or to the same addressee at 445 12th Street, SW, Washington, DC 20554 (not in an envelope). The EEO Staff has stated that they would like stations to respond as soon as possible and that they intend to provide each respondent with a reply setting forth the results of their review.

10. While the standard EEO Audit Letter requests a station to provide the employment unit's "two most recent EEO public file reports," the FCC's EEO Staff has informed us, with one caveat, that if a station has only been required to prepare and place one of them in its public file by May 28, 2004, the station need only provide that one report. However, the Staff added that if the station has already prepared early a subsequent report, the station should provide that report as well.

11. It is possible that certain persons and/or organizations will ask the FCC to withdraw the EEO Audit Letters, or to suspend the deadline on filing responses until after the FCC has clarified/resolved the many questions and issues before it on reconsideration. Because of that possibility, stations subject to the EEO Audit may wish to delay sending in their responses until close to the end of the period for doing so.