Federal Communications Commission FCC 18-103 Before the FEDERAL COMMUNICATIONS COMMISSION WASHINGTON, D.C. 20554 In the Matter of Equal Employment Opportunity Audit and Enforcement Team Deployment ) ) ) ) ORDER Adopted: July 24, 2018 Released: July 24, 2018 By the Commission: I. INTRODUCTION 1. In this Order, we conclude that it will serve the public interest and improve the Commission’s operations to move the audit and enforcement responsibilities associated with our equal employment opportunity (EEO) rules from the Media Bureau to the Enforcement Bureau. We take this action in recognition of the important role our EEO rules play in encouraging a diverse and multi-talented workforce and at the request of MMTC and other civil rights organizations. By transferring enforcement of these rules to the Enforcement Bureau, we find that we can better ensure that the communications companies subject to these rules give all qualified individuals an opportunity to apply and be considered as job candidates. We therefore conclude that this organizational change is warranted and amend the Commission’s rules accordingly. II. BACKGROUND 2. Fifty years ago this month, the Commission observed that equal opportunity in employment was essential to the public interest and committed to ensuring that the national policy against discrimination in hiring applied to broadcast licensees. Petition for Rulemaking to Require Broadcast Licensees to Show Nondiscrimination in Their Employment Practices, Memorandum Opinion and Order and Notice of Proposed Rulemaking, Docket No. 18244, 13 FCC 2d 766 (1968). This remains true today. Currently, a team comprised of attorneys and other professionals responsible for EEO audits and enforcement is part of the Commission’s Media Bureau. 47 CFR § 0.61(d). The EEO audit and enforcement team does essential work overseeing the EEO compliance of television and radio broadcast licensees, as well as multichannel video programming distributors (MVPDs), such as cable and DBS operators, and satellite radio. The team’s work is primarily focused on periodic random audits of broadcast licensee and MVPD EEO programs, along with any necessary enforcement actions arising from those audits. Each year, the EEO team conducts a random audit of the EEO compliance of five percent of radio station employment units, as well as five percent of television station employment units. 47 CFR § 73.2080(f)(4). The team also conducts random audits of the EEO compliance of MVPD employment units. 47 CFR § 73.77(d). In addition, the team is responsible for ensuring that every MVPD employment unit is reviewed for compliance through a supplemental investigation at least once every five years (meaning that approximately 20 percent are investigated each year). 47 CFR § 76.77(c). In addition, the team reviews EEO filings that broadcasters must submit to the Commission at the same time as their license renewal applications, Each broadcast licensee must file an FCC Form 396 (Broadcast Equal Opportunity Program Report) in conjunction with its license renewal application. 47 CFR § 73.2080(f)(1); FCC Form 396, available at https://transition.fcc.gov/Forms/Form396/396.pdf (last visited May 22, 2018). and for some broadcast licensees, the team assesses EEO compliance around the midpoint of their eight-year license terms. The EEO team reviews the EEO practices of all broadcast television stations in station employment units with five or more full-time employees, and all radio stations in employment units with eleven or more full-time employees, around the midpoint of broadcasters’ license terms. 47 CFR § 73.2080(f)(2). The Commission is currently considering elimination of FCC Form 397, which is used as part of the mid-term review process. FCC Form 397, available at https://transition.fcc.gov/Forms/Form397/397.pdf. (last visited May 22, 2018); see Elimination of Obligation to File Broadcast Mid-Term Report (Form 397) Under Section 73.2080(f)(2), Notice of Proposed Rulemaking, MB Docket No. 18-23 (2017). As discussed in that NPRM, even if Form 397 is eliminated, the mid-term review will still be conducted, as required by statute, and will be done by the EEO team. Id. at para. 7 (citing 47 U.S.C. § 334(b)). The EEO team also investigates complaints and takes enforcement action based on those investigations when necessary. 3. In the 2014 Quadrennial Review proceeding, the Multicultural Media, Telecom and Internet Council (MMTC), along with a large group of fellow self-identified “Diversity and Competition Supporters,” made an unopposed proposal to create a Civil Rights Branch of the Enforcement Bureau that would contain EEO enforcement. See Diversity and Competition Supporters Supplemental NPRM Comments at 80-81 (Proposal 40, Create a New Civil Rights Branch of the Enforcement Bureau), filed in MB Docket No. 09-182 (April 3, 2012). In the Quadrennial Second Report and Order, the Commission found that while there was no “need to denominate a separate branch,” moving EEO enforcement into the Enforcement Bureau “warrant[ed] further consideration.” 2014 Quadrennial Regulatory Review – Review of the Commission’s Broadcast Ownership Rules and Other Rules Adopted Pursuant to Section 202 of the Telecommunications Act of 1996, Second Report and Order, MB Docket No. 14-50, 31 FCC Rcd 9864 at 10007, para 333 (2016) (Quadrennial Second Report and Order). It therefore directed “the Media Bureau, Enforcement Bureau, and Office of the Managing Director, to discuss the feasibility, implications, and logistics of shifting the enforcement of the Media Bureau Equal Employment Opportunity rules from the Media Bureau to the Enforcement Bureau.” Id. Those internal discussion have now been completed. Recently, MMTC and a large group of self-identified “EEO Supporters” filed comments in the Modernization of Media Regulation proceeding similarly proposing that, in order to “modernize [our] EEO enforcement program,” the Commission should “[l]ocate the EEO staff in the Enforcement Bureau.” Comments of the EEO Supporters at 5-6 (Apr. 30, 2018), filed in MB Docket No. 17-105. See also EEO Supporters Ex Parte at 2 (June 1, 2018), filed in MB Docket No. 17-105. III. DISCUSSION 4. As the Commission observed in the Quadrennial Second Report and Order, the EEO team in the Media Bureau has consistently been effective at overseeing compliance with and enforcing the EEO rules. Quadrennial Second Report and Order at 10007, para. 333. Nonetheless, there are notable benefits to bringing the EEO team within a larger group of enforcement experts. The Enforcement Bureau’s staff has extensive experience conducting investigations and pursuing enforcement in a wide range of areas. They therefore are well positioned to provide assistance and guidance with EEO review, audit, and enforcement work. Further, the Enforcement Bureau has expertise in, and maintains tools and databases to aid with, the tracking of statutory deadlines, including those relevant to EEO audits and investigations, that the Media Bureau does not. 5. For these reasons, we believe that shifting the EEO team to the Enforcement Bureau will result in more effective enforcement of the Commission’s EEO rules. Accordingly, we find that the EEO team should be moved from the Media Bureau to the Enforcement Bureau. Specifically, the Policy Division staff in the Media Bureau who are currently responsible exclusively for EEO audit and enforcement will join the Enforcement Bureau’s Investigations and Hearings Division. As relocated to the Enforcement Bureau, the EEO team will continue to perform its existing compliance reviews, as described above, including periodic random audits, review of filings that broadcasters must submit to the Commission at the same time as their license renewal applications, and mid-term reviews. Rulemaking proceedings pertaining to EEO issues will continue to be conducted by the Media Bureau. 47 CFR § 0.61(b). 6. The key objectives of this organizational change are to more efficiently deploy Commission audit and enforcement resources, enhance industry-wide oversight of compliance with EEO rules, improve cross-Commission consistency in audit-based enforcement, and rationalize and modernize our organizational structure. We agree with the EEO Supporters that we can best accomplish these objectives through organizational change. In order to effectuate this change, we modify our procedural rules. Specifically, we eliminate the express delegation to the Media Bureau of authority for administration and enforcement of EEO rules and add an express delegation to the Enforcement Bureau covering the EEO rules. 47 CFR § 0.111(a). 7. The amendments adopted herein pertain to agency organization, procedure, and practice. Consequently, the notice and comment and effective date provisions of the Administrative Procedure Act contained in 5 U.S.C. §§ 553(b) and (d) do not apply. IV. ORDERING CLAUSES 8. Accordingly, IT IS ORDERED THAT, pursuant to sections 1, 4, 5(b), 5(c), and 303(r) of the Communications Act of 1934, as amended, 47 U.S.C. §§ 151, 154, 155(b), 155(c), 303(r), this Order IS ADOPTED. 9. IT IS FURTHER ORDERED that Part 0 of the Commission rules IS AMENDED as set forth in the Appendix. 10. IT IS FURTHER ORDERED that, consistent with the Consolidated Appropriations Act of 2017, See Consolidated Appropriations Act, 2018, Pub. L. 115-141, at Division E, Title VI, § 608, 132 Stat. 348 (2018). this Order WILL BECOME EFFECTIVE when the appropriate clearance has been obtained and the Commission thereafter publishes this Order in the Federal Register. FEDERAL COMMUNICATIONS COMMISSION Marlene H. Dortch Secretary 5 APPENDIX Final Rules The Federal Communications Commission amends 47 CFR Part 0 as follows: PART 0 – COMMISSION ORGANIZATION 1. The authority citation for Part 0 continues to read as follows: AUTHORITY: Secs. 5, 48 Stat. 1068, as amended; 47 U.S.C. 155, 225, unless otherwise noted. 2. Amend section 0.61 to revise subsection (d) to read as follows: § 0.61 Functions of the Bureau. * * * * * (d) [Reserved] 3. Amend section 0.111 to read as follows: § 0.111   Functions of the Bureau. * * * * * (11) Resolves other complaints against Title III licensees and permittees, including complaints under § 20.12(e) of this chapter, except that the Media Bureau has primary responsibility for complaints regarding children's television programming requirements, and for political and related programming matters involving broadcasters, cable operators and other multichannel video programming distributors. The relevant licensing Bureau has primary responsibility for complaints involving tower siting and the Commission's environmental rules. The Media Bureau has primary responsibility for complaints regarding compliance with conditions imposed on transfers of control and assignments of licenses of Cable Television Relay Service authorizations. * * * * * (13) Resolve complaints regarding multichannel video and cable television service under part 76 of the Commission’s rules, except that the Media Bureau has primary responsibility for complaints regarding the following: subpart A (general), with the exception of §76.11 of this chapter; subpart B (Registration Statements); subpart C (Federal-State/Local Relationships [Reserved]; subpart D (carriage of television broadcast signals); subpart F (nonduplication protection and syndicated exclusivity); subpart G, §§76.205, 76.206 and 76.209 of this chapter (political broadcasting); subpart I (Forms and Reports); subpart J (ownership); subpart L (cable television access); subpart N, §76.944 of this chapter (basic cable rate appeals), and §§76.970, 76.971 and 76.977 of this chapter (cable leased access rates); subpart O (competitive access to cable programming); subpart P (competitive availability of navigation devices); subpart Q (regulation of carriage agreements); subpart S (Open Video Systems); and subparts T, U and V to the extent related to the matters listed in this note. * * * * * (a)(26) Conduct audits and investigations and resolve issues of compliance concerning equal employment opportunity requirements involving Title III licensees and permittees or multichannel video programming distributors, including cable service providers, under part 76 of the Commission’s rules.