Draft FNPRM Seeks Comment on Reviving EEO Data Collection
An FCC draft equal employment opportunity proposal seeks comment on reviving long-stalled collection of minority employment data from broadcasters, said agency and industry officials in interviews last week. It stems from proposals by Geoffrey Starks shortly after he became commissioner to refresh the record on collecting such data through Form 395-B. Such collection was part of a proceeding in 2004 that stalled over confidentiality issues, broadcast officials said. The draft Further NPRM now on circulation seeks comment to refresh that record and doesn’t contain specific proposals, FCC and industry officials said.
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The notice isn’t expected to be controversial. Orders stemming from it could get opposition, industry officials said. The item is associated with docket 98-204 in the FCC’s circulation list. The commission didn't comment Friday. The item went on circulation Feb. 23.
FCC EEO workforce data collection was suspended in 2001 after two court cases raised constitutional concerns. An FNPRM stalled in 2004. “Fifteen years ago, the Commission committed to collect EEO data from our broadcast licensees as part of the agency’s statutory duty,” Commissioner Starks said in a February 2019 concurrence on the order eliminating such midterm reports. “But data collection has been stalled since then because the Commission has left unresolved a single, narrow question about whether that collection should be confidential.” Starks’ proposal to refresh the record on this data confidentiality in 2019 was rejected by then-Chairman Ajit Pai, Starks said then.
“A rulemaking on developing data to support equal employment opportunity has been kicking around these halls for a decade-and-a-half,” said Commissioner Jessica Rosenworcel, now acting chairwoman, in a concurrence on a June 2019 EEO NPRM. “Refreshing the record on data collection here is both prudent and overdue.” Rep. Yvette Clarke, D-N.Y., and Sen. Chris Van Hollen, D-Md., wrote Pai in 2019 asking him to reinstate the data collection. Pai rejected that as raising constitutional difficulties (see 1906110075).
The current draft appears to be that proposal resurrected, FCC and industry officials said: It's broad, doesn’t specify any upcoming rule changes, and is focused on the data collection question. Communications industry officials said the item’s broad nature is likely intended to help it get approved in a 2-2 FCC. Commissioner Brendan Carr was in the political majority when Starks made his original proposal, and Commissioner Nathan Simington said last week the agency should avoid burdening broadcasters with diversity and ownership regulations in a “world of collapse” (see 2103240052). It's possible the agency could wait until there's a full slate of commissioners -- with a Democratic majority -- to proceed to an order.
Broadcasters have expressed concern non-anonymized diversity data could be used against stations, said Pillsbury Winthrop's Scott Flick. Those concerns could come up again if the proceeding leads to an order, industry officials said. In a proceeding on improving EEO enforcement, a group of state broadcast associations said the FCC EEO rule “is one of the Commission’s most burdensome regulations,” and it “resides at the margin of constitutionality.”
“You can’t enforce what you can’t measure,” said President Maurita Coley of the Multicultural Media, Telecom and Internet Council, which pushed for stronger enforcement of EEO rules. "This is good news, and we definitely plan to comment and give our guidance. Industry officials said the draft item doesn’t raise the sort of EEO revisions that MMTC sought but is broad enough to allow room for entities like it to bring up those subjects. “Our main issues were to get the FCC back in the data collection business, to put some teeth into EEO enforcement, and to address broadcasters who fail to comply with the minimum standards of outreach,” said Coley. “The FCC is making a good start,” said MMTC Senior Adviser David Honig.