FCC Action on EEO Data Collection Not Expected Soon
Action on a proposal to revive FCC collection of equal employment opportunity workforce diversity data using Form 395-B isn’t expected soon despite recent calls from public interest and diversity groups for swift action, industry and FCC officials told us. The National Urban League, Common Cause, the Multicultural Media, Telecom and Internet Council and others said in recent joint supplementary comments in docket 98-204 that the agency needs to act within six months to produce useful reports by mid-2024, but industry and FCC officials said they don’t anticipate action on the matter while the FCC is without a Democratic majority.
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Diversity groups, including some in the most recent filing, have been lobbying for changes to EEO at the FCC for over 20 years, said MMTC Senior Adviser David Honig in an interview. That’s a long time even on “bureaucratic standard time,” he said. “Passing all of it would be the right thing to do,” he said.
The supplementary comments bundle EEO workforce data collection with a group of proposed EEO enforcement revisions that MMTC and other groups have long sought, but the data collection was the focus of the FCC’s most recent action on the topic, a July 2021 Further NPRM.
The data collection proposal stems from an FCC program that was suspended in 2001 after two court cases raised constitutional concerns. An FNPRM on reviving it stalled in 2004. Bringing the data collection back was raised by Commissioner Geoffrey Starks under the previous FCC, and the 2021 FNPRM was unanimously approved. Chairwoman Jessica Rosenworcel said then the agency shouldn’t have stalled on the issue. “After so much time, this pause turned into a standstill,” she said then. Rosenworcel said EEO data collection was something the agency was working on, at an NAB Show appearance in April, and Media Bureau Chief Holly Saurer said then the agency wanted to be able to quantify broadcaster progress in workforce equality (see 2204250067).
The anonymity of the collected data is considered the primary sticking point on the proposal. NAB opposed reviving the data collection but said if it's collected it must be anonymous. “Publishing the racial composition of each broadcaster’s workforce would clearly exceed the FCC’s authority,” NAB said in comments in 98-204. The supplemental comments urge the agency to publish the EEO data in a public digital portal that can be used to show results by company and on regional and state by state bases. “Transparency is a useful, least-intrusive means to evoke change,” said the supplementary comments. The 2021 FNRM didn’t contain specific proposals on anonymity but generally sought comment on the matter.
The FCC doesn’t need to wait for a Democratic majority to act on some of the proposed EEO changes, Honig said. That’s not the case for the workforce data collection but several other EEO proposals -- including establishing whistleblower protections for EEO violations, increasing audit frequency, investigating the lack of minority employment in radio news, and creating a Civil Rights Section in the Enforcement Bureau -- could be enacted through executive action by the chairwoman and don’t require notice and comment proceedings, he said.
Rule changes based on executive action or delegated authority can be more vulnerable to court challenges, said Pillsbury Winthrop broadcast attorney Scott Flick, who represented state broadcast associations in the proceeding. When the FCC last enacted one of the MMTC’s proposed EEO changes -- moving EEO enforcement to the Enforcement Bureau in 2019 -- it was after a unanimous commission vote (see 1807240049).