FCC Enforcement Monitor ~ December 2017
Pillsbury’s communications lawyers have published FCC Enforcement Monitor monthly since 1999 to inform our clients of notable FCC enforcement actions against FCC license holders and others. This month’s issue includes:
- FCC Proposes $20,000 Fine for Decade-Old EEO Violations
- FCC Goes After Small North Carolina Radio Station for Absence During Inspection
- Drone Company Agrees to $180,000 Settlement for Non-Compliant A/V Equipment
“Hire” Education: FCC Pursues South Carolina Radio Stations for EEO Violations
The FCC proposed a $20,000 fine against the operator of five radio stations near Myrtle Beach for allegedly failing to observe the Commission’s Equal Employment Opportunity (“EEO”) recruitment rules from 2008 through 2010.
The stated goal of the FCC’s EEO Rule is to promote equal access to employment opportunities in the communications industry while deterring discrimination in the hiring process. Pursuant to the EEO Rule, the FCC requires broadcast stations to follow certain procedures before filling each full-time vacancy. Among other things, the EEO Rule requires stations to use outside recruitment sources to publicize vacancies, notify interested third party referral sources of vacancies, and generate and retain in-depth recruitment reports.
This particular inquiry began in 2011 when the FCC randomly selected the stations’ employment unit for an EEO audit. The audit revealed several alleged violations surrounding eleven vacancies over the preceding two-year period. The FCC found that the licensee had either used no recruitment sources or only word-of-mouth when it recruited for six of the eleven vacancies. Further, the licensee allegedly failed to contact a third party that had previously requested notification of full-time vacancies.
In addition, the FCC asserted that the licensee failed to keep adequate records of the number of interviewees or the referral source of most of the interviewees during that period. As a result, this information was missing from both the licensee’s Annual EEO Public File Reports and its public inspection file. The FCC concluded that this meant the licensee could not adequately “analyze its recruitment program … to ensure that it is effective…” as Section 73.2080(c)(3) of the FCC’s Rules requires.
As a result, the FCC issued a Notice of Apparent Liability (“NAL”) proposing to fine the stations. While Section 503(b)(1)(B) of the Communications Act authorizes the FCC to penalize any person who violates the Act or the FCC’s Rules, neither the FCC’s Rules nor its forfeiture guidelines establish a base fine amount for specific EEO violations. Instead, the FCC characterized the asserted violations as a “failure to maintain required records,” for which the forfeiture guidelines recommend a base fine of $1,000. The FCC applied this fine to each of the six alleged violations of its recruitment rule and proposed an additional $2,000 fine for each of the other claimed EEO violations. The FCC then added a $4,000 upward adjustment based on the licensee’s history of similar EEO violations at other owned stations, resulting in a total proposed fine of $20,000.
The NAL also proposed a reporting requirement under which the stations would need to report their recruitment and EEO activities directly to the FCC’s Media Bureau for each of the next three years.
Of particular interest to stations assessing their own EEO compliance, the licensee’s 2008-09 and 2009-10 recruitment reports indicated that the stations had lost much of their recruitment data to “unauthorized removal.” Specifically, the licensee subsequently reported that some of the records disappeared following the dismissal of the stations’ local business manager. That explanation did not satisfy the FCC, which noted that the licensee’s loss of records “does not excuse it from having violated [the FCC’s] rules.”
This action is another reminder of the FCC’s strict enforcement of its EEO Rule. Stations needing a refresher on these requirements should check out our EEO Advisory for more information, and our 2018 Broadcasters’ Calendar for important EEO-related deadlines coming up in the next year.
Out to Lunch: AM Broadcaster Notified of Station Inspection Violation
The Commission presented a Notice of Violation (“NOV”) to a small North Carolina broadcaster for failing to staff its station during lunch hour one day this past March. In the same action, the FCC observed that the station was also transmitting from an antenna for which it was not licensed. Continue reading →