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This Pillsbury Broadcast Station Advisory is directed to radio and television stations in the areas noted above, and highlights upcoming deadlines for compliance with the FCC’s EEO Rule.

April 1, 2018 is the deadline for broadcast stations licensed to communities in Delaware, Indiana, Kentucky, Pennsylvania, Tennessee, and Texas to place their Annual EEO Public File Report in their public inspection file and post the report on their station website.  In addition, certain of these stations, as detailed below, must electronically file an EEO Mid-Term Report on FCC Form 397 by April 2 (while the mid-point of the license renewal term for stations in the states listed below is April 1, because that date falls on a weekend, submission of FCC Form 397 may be made by April 2, 2018.)

Under the FCC’s EEO Rule, all radio and television station employment units (“SEUs”), regardless of staff size, must afford equal opportunity to all qualified persons and practice nondiscrimination in employment.

In addition, those SEUs with five or more full-time employees (“Nonexempt SEUs”) must also comply with the FCC’s three-prong outreach requirements.  Specifically, Nonexempt SEUs must (i) broadly and inclusively disseminate information about every full-time job opening, except in exigent circumstances, (ii) send notifications of full-time job vacancies to referral organizations that have requested such notification, and (iii) earn a certain minimum number of EEO credits, based on participation in various non-vacancy-specific outreach initiatives (“Menu Options”) suggested by the FCC, during each of the two-year segments (four segments total) that comprise a station’s eight-year license term.  These Menu Option initiatives include, for example, sponsoring job fairs, participating in job fairs, and having an internship program.

Nonexempt SEUs must prepare and place their Annual EEO Public File Report in the public inspection files and on the websites of all stations comprising the SEU (if they have a website) by the anniversary date of the filing deadline for that station’s license renewal application.  The Annual EEO Public File Report summarizes the SEU’s EEO activities during the previous 12 months, and the licensee must maintain adequate records to document those activities.  Nonexempt SEUs must submit to the FCC the two most recent Annual EEO Public File Reports when they file their license renewal applications.

In addition, all TV station SEUs with five or more full-time employees and all radio station SEUs with 11 or more full-time employees must submit to the FCC the two most recent Annual EEO Public File Reports at the mid-point of their eight-year license term along with FCC Form 397—the Broadcast Mid-Term EEO Report.

Exempt SEUs—those with fewer than five full-time employees—do not have to prepare or file Annual or Mid-Term EEO Reports.

For a detailed description of the EEO Rule and practical assistance in preparing a compliance plan, broadcasters should consult The FCC’s Equal Employment Opportunity Rules and Policies – A Guide for Broadcasters published by Pillsbury’s Communications Practice Group.  This publication is available at: Continue reading →

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People often conflate the term “FCC lawyer” with “Communications Lawyer,” thinking of an FCC Lawyer as someone who represents clients solely with regard to interactions with the FCC and its rules.  A Communications Lawyer, however, represents communications clients in a variety of venues and on a variety of issues whose common thread is that they affect media or telecom companies in a unique or disproportionate way.  Communications Lawyers therefore find themselves not just before the FCC, but handling complex transactions, litigation, and legislative matters where the harm or benefit has little to do with the FCC, and much to do with how the action impacts a media or telecom client.

For this reason, while a lot of what we write about here at CommLawCenter does focus on the FCC, you’ll also read about FTC actions against social media ad campaigns, Supreme Court decisions on retransmission of local TV signals,  and Department of Labor actions affecting media overtime pay and internships.  In working with media clients and the various state broadcasters associations, it’s clear that media companies, from AM/FM clusters to large media conglomerates, are being disproportionately affected by the #MeToo movement.  In response to that, next week we’ll be holding a webinar in coordination with Pillsbury’s Employment Law and Crisis Management practices titled You and #MeToo: Crisis Management for Media Companies Addressing Sexual Harassment Complaints.  The webinar is at 1 pm ET on March 20th, and you can register for it here.

Fair warning, it’s not an employee training webinar on what is or isn’t appropriate conduct in a media workplace; it’s aimed at company owners and managers seeking to prevent sexual harassment and to respond to complaints quickly and effectively, not just as between employees, but in the court of public opinion.  Responding to a sexual harassment or similar complaint in a manner that is acceptable to employees but leaves your business and brand damaged is not a successful response.

While national coverage of the #MeToo movement has largely focused on accusations against national figures, that does not mean media companies of all sizes are not fielding similar complaints; it just means that the press coverage tends to be limited to the region where the complainant or the accused are well-known.  To a local radio or TV station facing a firestorm of criticism in their community over harassment claims, the intensity of that public reaction can be every bit as withering as claims playing out on a national stage.

For example, this past month brought a lawsuit against a Philadelphia morning show host and the radio station airing his program.  The suit alleges numerous incidents of sexual harassment over an extended period of time and was brought by an individual that served in multiple on-air roles, including as the host’s sidekick.  While these allegations haven’t drawn a lot of national press, you can bet Philly audiences are watching it closely.

Expect more of these local complaints to emerge in the months ahead.  It would be foolish to presume that the dynamics leading to #MeToo allegations only apply at the national level.  A standard theme of such complaints is that the person accused is in a position of power, views themselves as “special”, and therefore sees themselves as exempt from the rules that apply to others.  This same dynamic can apply in any size market or media operation.  A top-rated drive-time radio host or local news anchor in a small market might be a big fish in a small pond, but they may still see their fellow employees as small fish in that pond, potentially leading to that same sense of entitlement that has caused #MeToo moments elsewhere.

Of course, while public allegations by or against individuals in the public eye will usually draw the most press coverage, management is hardly exempt.  A recent article in Inside Radio describes a litany of disturbing encounters between a radio employee and her coworkers and news director.

Earlier this year, the Columbia Journalism Review released the results of an informal survey of more than 300 newsroom employees.  41% of the respondents reported having been the subject of harassment as newsroom employees or freelancers, with only a third of them having reported the incident.  It appears to have been an unscientific survey, but if we are to believe the results, nearly half of newsroom personnel have been the victims of harassment, and for every complaint that management receives, there are two more complaints that didn’t get reported.

A short-sighted employer might say that it can hardly be held responsible for episodes of harassment that weren’t reported at the time, but it is precisely those episodes that will emerge during the investigation of a subsequent complaint.  When this occurs, the public doesn’t see a media company that immediately investigated and dealt with a single sexual harassment complaint; it sees a company that let a pattern of harassment continue for years.

In addition to the damage to their brand, audiences, and advertisers, companies that poorly handle harassment allegations face legal liability to the complainant, the accused, and the company’s shareholders.  We’ve already seen lawsuits from all three groups, and there will undoubtedly be more.  Before you find yourself in a position where your actions could prevent or cause such a lawsuit, and you have only hours to make decisions before outside events overtake you, it makes sense to engage in some advance preparation.  We hope to see you next Tuesday.