In April, the commission issued a notice seeking comment on possible revisions to Form 395-B, an annual employment report that must be filled out by broadcasters. The revisions would make the form match the racial and employment categories used in the Form EEO-1 Employer Information Report, which is used by the Equal Employment Opportunity Commission (EEOC). The EEOC form was last revised in January 2006, and the FCC wants to know whether the revised standards should be incorporated into Form 395-B. The commission also asks whether the proposed changes would be consistent with the Communications Act.
Major revision: Officials and managers category
The EEO annual reporting requirement was suspended in 2001. Then, Form 395-B called for the provision of the racial and gender composition of each broadcast employment unit, according to job category. The EEOC revisions do not appear to create any major changes to the categories previously used by the FCC. The only obvious change is the EEOC's refinement of the “Officials and Managers” category, which it has now broken down into to gradations of officials and managers, including “Executive/Senior Level” and “First/Mid Level.”
According to the EEOC's instructions, “Executive/Senior Level” personnel “resid[e] in the highest levels of organizations” where they “plan, direct and formulate policies, set strategy and provide the overall direction.” By contrast, “First/Mid Level” managers take directions from “Executive/Senior Level” managers. Examples of “First/Mid Level” positions are vice presidents, treasurers and operations managers.
EEOC form includes more racial classifications
As to the racial classifications, the EEOC form provides more classifications than the FCC previously did. Under the EEOC system, the reportable categories are:
- White (not Hispanic or Latino);
- Black or African American (not Hispanic or Latino);
- Hispanic or Latino;
- Native Hawaiian or other Pacific Islander (not Hispanic or Latino);
- Asian (not Hispanic or Latino);
- American Indian or Alaska Native (not Hispanic or Latino); and
- Two or more races (not Hispanic or Latino).
This list varies from the FCC's previous categories by providing for persons of mixed races and differentiates among Asians and Pacific Islanders.
In accordance with the Communications Act
Whether any changes to Form 395-B — even the apparently benign changes that would be needed to conform it to the EEOC form — would be permitted by the Communications Act is a more troublesome question. Section 334 of the Communications Act expressly prohibits the commission from revising any EEO reporting forms. A subsection of Section 334 does provide the commission with latitude to revise its EEO regulations, but that exception says nothing about forms. A strict reading of Congress' language could lead to the conclusion that the FCC is stuck with the form it suspended in 2001.
The commission's notice of its intention to consider adoption of the EEOC's reporting standards and categories does not mean that a new Form 395-B will be adopted. But the notice is a strong indication that a new reporting requirement will be imposed.
Harry C. Martin is a past president of the Federal Communications Bar Association and a member of Fletcher, Heald and Hildreth, PLC.
- August 1 is the deadline for TV stations in California to file their biennial ownership reports.
- In the following states, August 1 also is the deadline for TV, Class A and LPTV stations that originate programming to place their annual EEO reports in their public files and place them on their Web sites: California, Illinois, North Carolina, South Carolina and Wisconsin.
- On August 1, TV stations with more than 10 full-time employees in North Carolina must electronically file their broadcast EEO midterm reports (Form 397) with the FCC.
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