Revision of Broadcast EEO Rule Enforcement

FEDERAL COMMUNICATIONS COMMISSION

47 CFR PART 73

[MM Docket No. 96-16, FCC 98-19]

Revision of Broadcast EEO Rule Enforcement

AGENCY: Federal Communications Commission.

ACTION: Final rule; policy statement.

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SUMMARY: This Order and Policy Statement adopts a change in the

Commission's enforcement of the Equal Employment Opportunity (EEO) Rule

for religious broadcasters. The announced change is similar to

suggestions made by some commenters in response to the Commission's

Order and Notice of Proposed Rule Making (NPRM), MM Docket No. 96-16,

which requested comment on ways to improve the Commission's EEO Rule

and policies to offer relief to distinctly situated broadcasters

without undermining the effectiveness of its EEO program. The

Commission will now permit religious broadcasters, as

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defined in the Order and Policy Statement, to establish religious

belief or affiliation as a job qualification for all station employees.

The Commission believes that this action will eliminate the potential

danger of impermissible governmental interference with a religious

broadcaster's judgment in the conduct and definition of its religious

affairs.

DATES: Effective April 8, 1998.

FOR FURTHER INFORMATION CONTACT: Renee Licht, Deputy Chief, Mass Media

Bureau. (202) 418-2600.

SUPPLEMENTARY INFORMATION: This is a synopsis of the Commission's Order

and Policy Statement, FCC 98-19, adopted February 5, 1998, and released

February 25, 1998.

The complete text of this Order and Policy Statement is available

for inspection and copying during normal business hours in the FCC

Reference Center (Room 239), 1919 M Street, NW., Washington, DC, and

also may be purchased from the Commission's copy contractor,

International Transcription Services, Inc., at (202) 857-3800, 1231

20th Street, NW, Washington, DC 20036.

Synopsis of Order and Policy Statement

1. In the Order and Policy Statement, the Commission modifies

enforcement of its broadcast Equal Employment Opportunity (EEO) Rule

with respect to religious broadcasters. Responding to the Commission's

request in Order and Notice of Proposed Rule Making (NPRM), MM Docket

No. 96-16, 11 FCC Rcd 5154 (1996), 61 FR 9964, March 12, 1996, for ways

to improve its EEO Rule and policies to afford relief to distinctly

situated broadcasters, some commenters requested that the Commission

permit religious licensees to establish religious affiliation or belief

as a bona fide occupational qualification for all positions at their

stations. The Commission's prior policy was to allow religious

broadcasters a limited exemption from the Commission's prohibition of

religious employment discrimination only for employees hired to espouse

religious views over the air. Upon review of this matter, the

Commission concludes that its policy should be expanded to permit

religious broadcasters to use religious belief or affiliation as a job

qualification for all station employees. The Commission believes that

this action will eliminate the potential danger of impermissible

governmental interference with a religious broadcaster's judgment in

the conduct and definition of its religious affairs.

2. This action should be considered binding as to radio licensees

and permittees. It should be considered a non-binding policy statement

for television licensees and permittees because section 334 of the

Communications Act of 1934, as amended, 47 U.S.C. 334, prohibits

revisions of EEO regulations concerning television licensees and

permittees.

3. For these purposes, a ``religious broadcaster'' is defined as a

licensee which is, or is closely affiliated with, a church, synagogue,

or other religious entity, including a subsidiary of such an entity.

Commission determination as to whether a licensee is a ``religious

broadcaster'' will be made on a case-by-case basis, based upon the

evaluation of certain characteristics of the religious entity.

4. Some commenters to the NPRM are concerned that expanding the

Commission's current policy concerning religious broadcasters would

lead to racial and ethnic discrimination and have a negative impact on

equal opportunity in the industry. However, in the Order and Policy

Statement, the Commission emphasizes that religious broadcasters are

still required to operate their stations in the public interest, as

defined in the Commission's rules and policies. Therefore, religious

broadcasters are not permitted to engage in employment discrimination

against women and minorities and are still required to comply with

sections 73.2080(b) and (c) of the Commission's Rules, 47 CFR

73.2080(b) and (c), requiring broadcasters to maintain a positive,

continuing program of specific practices designed to ensure equal

employment opportunity, for persons who share their faith, in every

aspect of station employment and practice. Religious broadcasters are

also still required to file EEO Forms 396-A, 396, and 395-B and their

EEO programs will continue to be subject to examination by the

Commission at renewal time, as well as other relevant periods, to

determine compliance with the EEO Rule.

Initial Paperwork Reduction Act of 1995 Analysis

The decision herein has been analyzed with respect to the Paperwork

Reduction Act of 1995, Public Law No. 104-13, and found to impose or

propose no modified information collection requirement on the public.

Final Regulatory Flexibility Certification

As required by the Regulatory Flexibility Act (``RFA''),

1 see 5 U.S.C. 603, an Initial Regulatory Flexibility

Analysis (``IRFA'') was incorporated in the NPRM. 2 The

Commission sought written public comments on the proposals in the NPRM,

including the IRFA.

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\1\ The RFA, see 5 U.S.C. 601 et. seq., has been amended by the

Contract With America Advancement Act of 1996, Public Law No. 104-

121, 110 Stat. 847 (1996) (CWAAA). Title II of the CWAAA is the

Small Business Regulatory Enforcement Fairness Act of 1996.

\2\ 11 FCC Rcd at 5183.

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Joint Commenters 3 criticize the IRFA for not stating

that the proposals in the Notice could adversely affect some non-

licensee entities including Black colleges, community groups which

refer job candidates, discrimination victims, individual job

applicants, petitioners to deny, and members of the listening and

viewing audience. Joint Commenters maintain that the IRFA failed ``to

mention the limited resources available to each of these parties in

meeting significant burdens which would be imposed on them by cutbacks

in EEO enforcement.'' 4 Joint Commenters' arguments are

without merit. In the IRFA, the Commission did not indicate the

economic impact of a rule change on any entity, stating that it ``was

unable to assess at this time what, if any, economic impact the

proposed rule change would have on small business entities'' and that a

full assessment of the potential impact would be made, if applicable,

at the final rulemaking stage. 5 Furthermore, the entities

described by Joint Commenters would not be discussed in the Regulatory

Flexibility Analysis at any stage in this proceeding because such

analysis is reserved for entities directly regulated and affected by

the subject rule of a proceeding and the entities discussed by Joint

Commenters are not so regulated and affected. See Mid-Tex Electric

Cooperative, Inc. v. Federal Energy Regulatory Commission, 773 F.2d 327

(D.C. Cir. 1985).

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\3\ Joint Commenters consist of the following organizations that

filed their comments together: Minority Media Telecommunications

Council, Office of Communication of the United Church of Christ,

National Council of Churches, American Civil Liberties Union,

American Hispanic Owned Radio Association, Association of Black

Owned Television Stations, Black Citizens for a Fair Media, Black

College Communications Association, Chinese for Affirmative Action,

Cultural Environment Movement, Fairness and Accuracy in Reporting,

Hispanic Association on Corporate Responsibility, League of United

Latin American Citizens, Minority Business Enterprise Legal Defense

and Education Fund, Inc., National Association for the Advancement

of Colored People, National Association of Black Owned Broadcasters,

National Bar Association, National Hispanic Media Coalition,

National Rainbow Coalition, National Urban League, Operation PUSH,

and Women's Institute for Freedom of the Press.

\4\ Comments of Joint Commenters at 119.

\5\ 11 FCC Rcd at 5183-84.

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We now believe that, pursuant to the RFA, see 5 U.S.C. 605(b), we

can certify

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that the action taken in this Order and Policy Statement, as

distinguished from the broader proposals contained in the entire NPRM,

will not have a significant economic impact on a substantial number of

small entities. Other issues and proposals will be addressed in a

Report and Order to be issued at a later date. This action simply

allows religious broadcasters to establish religious affiliation or

belief as a bona fide occupational qualification for all station

positions, an action which will not have a significant economic impact.

Religious broadcasters are still required to ensure equal employment

opportunity in every aspect of station employment policy and practice

for persons who share their faith. The Commission will publish this

certification in the Federal Register, and will provide a copy of the

certification to the Chief Counsel for Advocacy of the Small Business

Administration. The Commission will also include the certification in

the report to Congress pursuant to the RFA, see 5 U.S.C. 801.

List of Subjects in 47 CFR Part 73

Radio broadcasting, Television broadcasting.

Federal Communications Commission.

Magalie Roman Salas,

Secretary.

[FR Doc. 98-5939 Filed 3-6-98; 8:45 am]

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