12 Comm. Law. 15 (1994-1995)
EEO Compliance under New FCC Tough but Fair Enforcement Regime

handle is hein.journals/comlaw12 and id is 15 raw text is: EEO Compliance under New FCC
Tough But Fair Enforcement Regime

A series of recent actions make clear
that EEO enforcement will be a high
priority of the Federal Communications
Commission under new Chairman Reed
Hundt. First, the FCC on February 1,
1994, released a policy statement,1
described by the Chairman as reaf-
firm[ing] the Commission's commit-
ment to tough but fair enforcement2 of
its broadcast EEO requirements, which
establish strict forfeiture guidelines for
violations. At the same time, the FCC
imposed numerous sanctions against
certain broadcast licensees and a cable
television system for EEO rule viola-
tions. The broadcast industry can expect
that short-term renewals will become
more common, and that heavy fines
(beginning at $12,500) and reporting
conditions will be imposed routinely.
License renewal hearings can be antici-
pated in the most egregious situations.
In conjunction with stiffer penalties, the
Commission is placing an increased
emphasis on licensees' ability to gener-
ate an adequate pool of minority appli-
cants for each job opening.
With the publication of the policy
statement, compliance with the FCC's
strict EEO obligations has become an
even more crucial element of the
license renewal process than before.
The EEO rule requires each licensee to
refrain from employment discrimina-
tion and maintain a positive EEO pro-
gram that focuses on efforts to recruit,
hire, and promote minorities and
women. The Commission's recent
actions reflect a get-tough attitude
about enforcing the efforts-based EEO
*Ms. Gardner is a partner in the
Washington, D.C., communications
law firm of Leventhal, Senter &
Lerman, where she specializes in
broadcast regulatory matters. She is
the co-author of the Equal Employ-
ment Opportunity Guidebook, pub-
lished by the National Association of
Broadcasters in 1991, and participat-
ed on a Labor and Employment Law
Panel at the ABA Forum on Com-
munications Law in March 1994.

regime that the agency adopted nearly
seven years ago. Now more than ever,
the most critical aspect of EEO compli-
ance is diligence in attempting to
recruit minorities for every job vacan-
cy, coupled with the maintenance of
detailed records concerning these
efforts and their results.
The new policy statement for the first
time provides relatively bright-line
guidelines by which the Commission
will determine and impose sanctions
for EEO violations, thereby creating
the potential for a more consistent body
of EEO enforcement precedents. Nev-
ertheless, the Commission has retained
considerable flexibility in applying the
guidelines. The FCC has specifically
stated that the document does not bind
either licensees or the Commission and
has already issued one post-policy
statement decision that departs signifi-
cantly from a literal application.
Under the policy statement, a
$12,500 base forfeiture (accompanied
by annual reporting conditions) will be
imposed on license renewal applicants
who fail to recruit so as to attract an
adequate pool of minority and female
applicants or hires for at least two-
thirds of all vacancies during the
review period (generally three to four
years). The policy statement does not
define the term adequate. To date,
neither the Commission's spokesper-
sons nor its written enforcement actions
have given more specific meaning to
this term. The base forfeiture amount
can be adjusted upward or downward
in accordance with certain criteria.
Upward adjustments, which range from
$6,250 to $250,000 in the most egre-
gious cases, are generally warranted in
cases of:
a failure to recruit so as to attract an
adequate pool of minority/female
applicants or hires for at least one-third
of all vacancies for the term under
a large or substantial number of hiring
opportunities (25 or more) that did not

generate adequate minority/female
applicants or hires;
a local labor force with 20 percent or
more minorities, 10 percent or more of a
single minority group, or a large pool of
women, that did not generate adequate
minority/female applicants or hires;
prior EEO violations; and
EEO violations as to both women and
Short-term renewals, generally for
five years for radio licensees, will be
assessed if certain of the upward adjust-
ment factors listed above are present.
The base forfeiture amount of
$12,500 can be adjusted downward by
varying amounts if:
actual hiring experience overall and in
the upper four job categories complies
with or exceeds FCC numerical process-
ing guidelines;
a station's annual employment profiles
comply with or exceed FCC numerical
guidelines for both overall and upper
four job categories for virtually all of the
license term;
there were few hiring opportunities dur-
ing the license term (up to five or up to
ten, depending on station size);
minorities are less than 6 percent of the
relevant labor force;
a licensee demonstrates an inability to
pay the forfeiture; or
the station is a stand-alone in market
200 or above.
As the guidelines indicate, not only
is the FCC continuing to require
licensees to demonstrate that they made
efforts to recruit and hire minorities,
but now the Commission is looking at
results. Licensees that are unable to
demonstrate that these efforts produced
a significant number of minority appli-
cants or interviewees are at greater risk
as to reporting conditions, forfeitures,
and short-term renewals.
Recent Sanctions Based on the
Policy Statement
At the time it published the policy
statement, the FCC imposed sanctions
for a variety of EEO violations that had

Communications Lawyer ED 15

Spring 1994

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