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AGENCY:

Federal Communications Commission.

ACTION:

Final rule.

SUMMARY:

In this document, the Federal Communications Commission (FCC or Commission) eliminates a requirement of our rules that oblige certain broadcast television and radio stations to file the FCC Broadcast Mid-Term Report (Form 397). This requirement has become redundant now that most of the information that the form requests is readily accessible online via the Commission's Online Public Inspection File (Public File). The Public File will be modified to allow stations to indicate whether they are subject to a mid-term review, as this is the only information not otherwise available. It therefore finds that eliminating this requirement will serve the public interest.

DATES:

Effective May 15, 2019.

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FOR FURTHER INFORMATION CONTACT:

For additional information, contact Jonathan Mark, Jonathan.Mark@fcc.gov, of the Media Bureau, Policy Division, (202) 418-3634. Direct press inquiries to Janice Wise at (202) 418-8165.

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SUPPLEMENTARY INFORMATION:

This is a summary of the Commission's Report and Order (Order), FCC 19-10, adopted February 14, 2019 and released on February 15, 2019. The full text of this document is available electronically via the FCC's Electronic Document Management System (EDOCS) website at http://fjallfoss.fcc.gov/​edocs_​public/​ or via the FCC's Electronic Comment Filing System (ECFS) website at http://fjallfoss.fcc.gov/​ecfs2/​. (Documents will be available electronically in ASCII, Microsoft Word, and/or Adobe Acrobat.) This document is also available for public inspection and copying during regular business hours in the FCC Reference Information Center, which is located in Room CY-A257 at FCC Headquarters, 445 12th Street SW, Washington, DC 20554. The Reference Information Center is open to the public Monday through Thursday from 8:00 a.m. to 4:30 p.m. and Friday from 8:00 a.m. to 11:30 a.m. The complete text may be purchased from the Commission's copy contractor, 445 12th Street SW, Room CY-B402, Washington, DC 20554. Alternative formats are available for people with disabilities (Braille, large print, electronic files, audio format), by sending an email to fcc504@fcc.gov or calling the Commission's Consumer and Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 (TTY).

Synopsis

I. Report and Order

1. In this Report and Order (Order), we eliminate the requirement in Section 73.2080(f)(2) of the Commission's rules that certain broadcast television and radio stations file the FCC Broadcast Mid-Term Report (Form 397). Earlier this year, we issued a Notice of Proposed Rulemaking (NPRM) (83 FR 12313) proposing to eliminate Form 397, which requires stations to provide equal employment opportunity (EEO) information that is generally also available through other sources, including stations' online public inspection files.^[1] No commenter opposes elimination of this requirement. As set forth below, we conclude that eliminating this largely redundant reporting requirement will further our efforts to modernize our media rules and reduce unnecessary requirements without hindering the Commission's ability to conduct mid-term reviews of broadcasters' EEO practices.

2. Section 334(b) of the Communications Act of 1934, as amended (the Act), directs the Commission to conduct a mid-term review of broadcast stations' employment practices. Commission staff reviews the EEO practices of broadcast Start Printed Page 21719television stations in station employment units with five or more full-time employees,^[2] and radio stations in employment units with eleven or more full-time employees, around the midpoint of broadcasters' eight-year license terms. After completing a mid-term review, staff informs licensees of any necessary improvements in recruitment practices to ensure that they are in compliance with the Commission's EEO rules.

3. To facilitate mid-term reviews, the Commission adopted the current Form 397 in 2002.^[3] Licensees subject to mid-term review must file Form 397 at least four months prior to the four-year anniversary of the station's most recent license expiration date. Form 397 consists of three sections and requires stations to provide information that, with one exception, also is available in their public inspection files.^[4] First, stations must certify whether they have the requisite number of full-time employees to be subject to a mid-term review.^[5] As discussed below, because this piece of information is not otherwise available, we will implement a simple mechanism for stations to provide it to the Commission via the Online Public Inspection File (OPIF). Second, stations must identify, by name and title, “a particular official with overall responsibility for equal employment opportunity at the station.” This official also must be identified in Form 396, Broadcast Equal Employment Opportunity Program Report, which must be included in a station's public file. Third, all stations subject to mid-term review must attach copies of their two most recent annual EEO public file reports to Form 397. Each station must also place these reports both in its public file and on its website, if it has one, on an annual basis. Each of the reports must be retained in the station's public file until its next license renewal is granted. Given the availability of this information to both the public and Commission staff even in the absence of Form 397, the record overwhelmingly supports elimination of the obligation to file the form.^[6]

4. We adopt the NPRM's proposal to eliminate the requirement for broadcast television and radio stations to file Form 397. We agree with commenters that “eliminating this outdated filing requirement will reduce the burden on licensees and the unnecessary waste of administrative and material. resources” without undermining our ability to conduct the statutorily-required mid-term reviews of broadcaster compliance with the EEO rules.^[7] Because the transition to the OPIF is now complete,^[8] nearly all the information in Form 397 is easily accessible online. As noted above, the number of fulltime employees working at a station, which is the trigger for determining whether a station is subject to a mid-term review, is the only piece of information included in the Form 397 that is not currently available in a station's online public file. To address this issue, we will modify the OPIF, as described below, to enable broadcasters to provide this information to the Commission in a simple way and allow Commission staff to quickly identify stations subject to a mid-term review.

5. As an initial matter, we adopt our tentative conclusion that eliminating Form 397 is consistent with Section 334 of the Act. NAB and Nexstar, the only two commenters to weigh in on our statutory interpretation, agree with our tentative conclusion. Specifically, Section 334(a) prohibits revisions to EEO rules “in effect on September 1, 1992 (47 CFR 73.2080) as such regulations apply to television broadcast station licensees and permittees” and to the forms “used by such licensees and permittees to report pertinent employment data to the Commission.”^[9] Section 334's legislative history identifies those forms as FCC Forms 395-B and 396 and, as noted above, the Commission did not adopt Form 397 until after the date listed in Section 334. Accordingly, based on the statutory language and legislative history, we conclude that Form 397 is not subject to the statutory limitation on revisions found in Section 334(a). In addition, although Section 334(b) directed the Commission to revise its regulations to require a mid-term review of television broadcast licensees' employment practices, it did not require the Commission to adopt Form 397. Thus, we adopt our tentative conclusion that Section 334(b) does not bar the Commission from eliminating Form 397, and we emphasize that the Commission Start Printed Page 21720will continue to conduct mid-term reviews even in the absence of Form 397.^[10]

6. We also adopt our tentative conclusion in the NPRM that eliminating the Form 397 filing requirement will reduce unnecessary regulatory burdens that no longer serve the public interest. Commenters recognize, prior to establishing the OPIF in 2012, “Form 397 was the only vehicle available to the [Commission] by which it could readily access the requisite documentation to complete its congressionally mandated task of review.” However, now that all broadcast licensees subject to a midterm review are also required to have an online public file,^[11] the need for the physical submission of the Form 397 no longer exists. The information in Form 397 is duplicative of documentation and information already available in a station's online public inspection file (i.e., the requisite EEO contact information and copies of EEO public file reports) or that can easily be made available in the OPIF (i.e., whether the station has the requisite number of full-time employees). Thus, as commenters contend, the burdens associated with filing Form 397, including “the consumption of internal administrative efforts to prepare and file the form in the system or pay the fees associated with having outside FCC counsel prepare and/or submit the form online on behalf of the licensee,” far outweigh its benefits.

7. In the NPRM, we sought comment on whether, if we adopted our proposal to eliminate Form 397, we should separately and more frequently solicit from broadcast licensees EEO point of contact information, the second piece of information collected via Form 397. We find persuasive commenters' arguments that “a separate and singular [new] requirement to provide a station specific EEO contact beyond the context of the Form 397 is unnecessary.” Indeed, such a requirement already exists. Given that the Commission already solicits EEO point of contact information once every eight years through Form 396 and station licensee contact information on various FCC forms, we agree that soliciting this information elsewhere is unnecessary.

8. To ensure that Commission staff will still be able to identify which licensees are subject to a mid-term review in the absence of Form 397, we will require radio stations to answer a question about staffing size in order to upload an EEO public file report to the OPIF. In the NPRM, we identified two possible ways to make this information available, as proposed by NAB. The first, NAB's preferred approach, would “require all subject stations to indicate whether they are subject to a mid-term review on their annual EEO public file report.” As the NPRM explained, however, “this proposal would not provide information in a format that easily could be aggregated,” and would potentially require Commission staff to manually review thousands of EEO public file reports in order to determine which stations are subject to a mid-term review. Alternatively, NAB suggested modifying the OPIF itself to require stations to indicate whether they are subject to a mid-term review as a prerequisite to filing their annual EEO public file report. The NPRM proposed that this could be achieved by “adding questions regarding staff size to each station's public file that must be answered before the station can upload its EEO public file report.” NAB argues that this approach would require greater Commission staff resources than its first proposal, but does not explain why it believes this to be the case. No other commenter put forth alternative proposals or addressed the concerns raised by the Commission about the first proposal suggested by NAB.

9. We adopt NAB's second proposal and require radio stations uploading an EEO public file report to the OPIF, as they are required to do annually under our rules, to identify whether their staff size is sufficient to trigger a mid-term review.^[12] This information, entered into the OPIF itself rather than simply recorded on an uploaded document in a way that is not aggregable, will allow Commission staff to quickly and easily identify stations subject to mid-term review. As acknowledged in the NPRM, this approach will impose a one-time information technology resource cost on the Commission, but will also minimize the annual administrative burden of conducting the statutorily-required mid-term review. It also has the attribute of imposing only a de minimis burden on subject stations to answer an additional question at the time they upload their annual EEO report. We note that we anticipate that the necessary information technology work to effectuate this change will be completed well before the next radio midterm review cycle.^[13]

10. In addition to the proposed elimination of Form 397, the NPRM also sought comment on “the FCC's track record on EEO enforcement and how the agency can make improvements to EEO compliance and enforcement.” We received responsive comments from a group of 33 organizations (collectively the “EEO Supporters”). While these commenters did not address the NPRM' s proposal to eliminate Form 397, in response to the NPRM the EEO Supporters expressed concern over the degree to which the Commission has addressed “the core issue” of word-of-mouth recruiting “conducted by a homogenous, non-diverse staff,” or “cronyism,” within the broadcast industry.^[14] They also recommended that the Commission engage in audit reform and locate EEO staff in the Enforcement Start Printed Page 21721Bureau.^[15] Within 90 days of adoption of this Order, the Commission will seek comment in a Further Notice on the FCC's track record on EEO enforcement and how the agency can make improvements to EEO compliance and enforcement.^[16]

11. For the reasons discussed above, we find that § 73.2080(f)(2)'s requirement that certain broadcast television and radio stations file Form 397 is unduly burdensome and no longer necessary. We amend our rules to eliminate Form 397 after the completion of the current mid-term review cycle which ends on April 1, 2019.^[17]

II. PROCEDURAL MATTERS

A. Final Regulatory Flexibility Act Analysis

12. As required by the Regulatory Flexibility Act of 1980, as amended (RFA),^[18] an Initial Regulatory Flexibility Analysis (IRFA) was incorporated in the Notice of Proposed Rulemaking (NPRM) in MB Docket 18-23.^[19] The Commission sought written public comments on proposals in the NPRM, including comment on the IRFA. The Commission received no comments on the IRFA. The present Final Regulatory Flexibility Analysis (FRFA) conforms to the RFA.

13. Need for, and Objectives of, the Report and Order. The Report and Order (Order) stems from a Public Notice issued by the Commission in May 2017, launching an initiative to modernize the Commission's media regulations.^[20] Numerous parties in that proceeding argued for elimination of the recordkeeping requirement at issue as redundant and unnecessary. The Order adopts the NPRM' s proposal to eliminate a provision of the Commission's rules that obligates certain broadcasters to file a Broadcast Mid-Term Report documenting their compliance with the Commission's EEO requirements, without eliminating the mid-term review of employment practices.

14. Specifically, the Order eliminates the requirement that broadcast television stations in station employment units (SEUs) with five or more full-time employees, and radio stations in SEUs with 11 or more full-time employees, file Form 397 four months prior to the date four years after their most recent license expiration date.^[21] This Order reduces an outdated regulation and unnecessary regulatory burdens that can impede competition and innovation in media markets. It also announces changes to the Commission's Online Public Inspection File database (OPIF) in order for Commission staff to determine which stations are subject to the statutory mid-term review of employment practices.^[22]

15. Summary of Significant Issues Raised by Public Comments in Response to the IRFA. No comments were filed in response to the IRFA.

16. Response to Comments by the Chief Counsel for Advocacy of the Small Business Administration. Pursuant to the Small Business Jobs Act of 2010, which amended the RFA, the Commission is required to respond to any comments filed by the Chief Counsel for Advocacy of the SBA and to provide a detailed statement of any change made to the proposed rules as a result of those comments.^[23] The Chief Counsel did not file any comments in response to this proceeding.

17. Description and Estimate of the Number of Small Entities to Which Rules Will Apply. The RFA directs agencies to provide a description of and, where feasible, an estimate of the number of small entities that will be affected by the rules adopted.^[24] The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction” ^[25] In addition, the term “small business” has the same meaning as the term “small business concern” Start Printed Page 21722under the Small Business Act.^[26] A “small business concern” is one which: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the SBA.^[27] The final rules adopted herein affect small television and radio broadcast stations. A description of these small entities, as well as an estimate of the number of such small entities, is provided below.

18. Television Broadcasting. This Economic Census category “comprises establishments primarily engaged in broadcasting images together with sound.” ^[28] These establishments operate television broadcast studios and facilities for the programming and transmission of programs to the public.^[29] These establishments also produce or transmit visual programming to affiliated broadcast television stations, which in turn broadcast the programs to the public on a predetermined schedule. Programming may originate in their own studio, from an affiliated network, or from external sources. The SBA has created the following small business size standard for such businesses: Those having $38.5 million or less in annual receipts.^[30] The 2012 Economic Census reports that 751 firms in this category operated in that year. Of that number, 656 had annual receipts of less than $25,000,000, and 95 had annual receipts of $25,000,000 or more.^[31] Based on this data, we estimate that the majority of commercial television broadcasters are small entities under the applicable SBA size standard.

19. In addition, the Commission has estimated the number of licensed commercial television stations to be 1,349.^[32] Of this total, 1,277 stations had revenues of $38.5 million or less, according to Commission staff review of the BIA Kelsey Inc. Media Access Pro Television Database (BIA) on October 1, 2018. Such entities, therefore, qualify as small entities under the SBA definition. The Commission has estimated the number of licensed noncommercial educational (NCE) television stations to be 412.^[33] The Commission, however, does not compile and does not have access to information on the revenue of NCE stations that would permit it to determine how many such stations would qualify as small entities.

20. We note, however, that in assessing whether a business concern qualifies as “small” under the above definition, business (control) affiliations ^[34] must be included. Our estimate, therefore likely overstates the number of small entities that might be affected by our action, because the revenue figure on which it is based does not include or aggregate revenues from affiliated companies. In addition, another element of the definition of “small business” requires that an entity not be dominant in its field of operation. We are unable at this time to define or quantify the criteria that would establish whether a specific television broadcast station is dominant in its field of operation. Accordingly, the estimate of small businesses to which the proposed rules would apply does not exclude any television station from the definition of a small business on this basis and therefore could be over-inclusive.

21. There are also 1,911 LPTV stations and 389 Class A stations.^[35] Given the nature of these services, we will presume that all of these entities qualify as small entities under the above SBA small business size standard.

22. Radio Stations. This economic Census category “comprises establishments primarily engaged in broadcasting aural programs by radio to the public.” ^[36] The SBA has created the following small business size standard for this category: Those having $38.5 million or less in annual receipts.^[37] Census data for 2012 shows that 2,849 firms in this category operated in that year.^[38] Of this number, 2,806 firms had annual receipts of less than $25,000,000, and 43 firms had annual receipts of $25,000,000 or more.^[39] Therefore, based on the SBA's size standard, the majority of such entities are small entities.

23. Apart from the U.S. Census, the Commission has estimated the number of licensed commercial AM radio stations to be 4,626 stations ^[40] and the number of commercial FM radio stations to be 6,737, for a total number of 11,363.^[41] Of this total, 11,362 stations had revenues of $38.5 million or less, according to Commission staff review of the BIA Kelsey Inc. Media Access Pro Television Database (BIA) on October 1, 2018. In addition, the Commission has estimated the number of noncommercial educational FM radio stations to be 4,130.^[42] NCE stations are non-profit, and therefore considered to be small entities.^[43] Therefore, we estimate that the majority of radio broadcast stations are small entities.

24. Description of Reporting, Record Keeping, and Other Compliance Requirements for Small Entities. In this section, we identify the reporting, recordkeeping, and other compliance requirements in the Order and consider whether small entities are affected disproportionately by any such requirements.

25. Reporting Requirements. The Order does adopt new reporting requirements.^[44] It requires radio stations to indicate whether they have the requisite number of full-time employees to be subject to a mid-term review.

26. Recordkeeping Requirements. The Order does not adopt new recordkeeping requirements.

27. Other Compliance Requirements. The Order does not adopt new compliance requirements.

28. Steps Taken to Minimize Significant Economic Impact on Small Entities, and Significant Alternatives Considered. The RFA requires an agency to describe any significant alternatives that it has considered in reaching its approach, which may include the following four alternatives (among others): (1) The establishment of Start Printed Page 21723differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance or reporting requirements under the rule for small entities; (3) the use of performance, rather than design, standards; and (4) an exemption from coverage of the rule, or any part thereof, for small entities.^[45]

29. The Order eliminates the obligation imposed on certain broadcasters to file a Broadcast Mid-Term Report on employment practices. Eliminating this requirement is intended to modernize the Commission's regulations and reduce costs and recordkeeping burdens for affected entities, including small entities. Under the prior rule, affected entities were required to expend time and resources gathering and filing consolidated information that is largely already otherwise supplied to the Commission. The Order will require radio stations uploading an EEO public file report to answer one “either/or” question about staffing in order to determine their eligibility for the statutorily mandated mid-term review of broadcast equal employment practices. In the aggregate, replacing Form 397 with this requirement to provide additional information in the OPIF constitutes a reduction in burdens, and is as minimal a burden as possible for all entities, including small entities. Thus, we anticipate that affected small entities only stand to benefit from these revisions.

B. Paperwork Reduction Analysis

30. This document contains proposed new or revised information collection requirements subject to the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3501-3520). The requirements will be submitted to the Office of Management and Budget (OMB) for review under Section 3507(d) of the PRA. OMB, the general public, and other Federal agencies will be invited to comment on the information collection requirements contained in this proceeding. The Commission will publish a separate document in the Federal Register at a later date seeking these comments. In addition, we note that, pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4), the Commission previously sought specific comment on how it might further reduce the information collection burden for small business concerns with fewer than 25 employees. We have described impacts that might affect small businesses, which includes most businesses with fewer than 25 employees, in the FRFA.

C. Congressional Review Act

31. The Commission will send a copy of this Report and Order in a report to be sent to Congress and the Government Accountability Office pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A).

III. Ordering Clauses

32. Accordingly, It is ordered that, pursuant to the authority found in sections 1, 4(i), 4(j) and 334 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i), 154(j), and 334 this Report and Order IS HEREBY ADOPTED.

33. It is further ordered that this Report and Order SHALL BECOME EFFECTIVE on May 1, 2019, except for those provisions which contain non-substantive modifications to existing information collection requirements that require approval by the Office of Management and Budget (OMB) under the Paperwork Reduction Act. The non-substantive modifications WILL BECOME EFFECTIVE upon the effective date announced when the Commission publishes a notice in the Federal Register announcing such OMB approval and the effective date.

34. It is further ordered that the Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, SHALL SEND a copy of this Report and Order, including the Final Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration.

35. It is further ordered that the Commission SHALL SEND a copy of the Report and Order in a report to Congress and the Government Accountability Office pursuant to the Congressional Review Act (CRA), see 5 U.S.C. 801(a)(1)(A).

36. It is further ordered that, should no petitions for reconsideration or petitions for judicial review be timely filed, MB Docket No. 18-23 shall be TERMINATED, and its docket closed.

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List of Subjects in 47 CFR Part 73

• Equal employment opportunity
• Radio
• Reporting and recordkeeping requirements
• Television

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Final Rules

For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR part 73 as follows:

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PART 73—RADIO BROADCAST SERVICES

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1. The authority citation for part 73 continues to read as follows:

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Authority: 47 U.S.C. 154, 155, 301, 303, 307, 309, 310, 334, 336, and 339.

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2. Amend § 73.2080 by revising paragraph (f)(2) to read as follows:

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Footnotes