I. THE LAW
A. Section 396(k)(11) of the Communications Act provides that:
"(A) Funds may not be distributed pursuant to this subsection for any fiscal year to the licensee or permittee of any public broadcast station if such licensee or permittee--
"(i) fails to certify to the Corporation that such licensee or permittee complies with the Commission's regulations concerning equal employment opportunity as published under section 73.2080 of title 47, Code of Federal Regulations, or any successor regulations thereto; or
"(ii) fails to submit to the Corporation the report required by subparagraph (B) for the preceding calendar year.
"(B) A licensee or permittee of any public broadcast station with more than five full time employees is required to file annually with the Corporation a statistical report, consistent with reports required by Commission regulation, identifying by race and sex the number of employees in each of the following full-time and part-time job categories:
"(i) Officials and managers.
"(iv) Semiskilled operatives.
"(v) Skilled craft persons.
"(vi) Clerical and office personnel.
"(vii) Unskilled operatives.
"(viii) Service workers.
"(C) In addition, such report shall state the number of job openings occurring during the course of the year. Where the job openings were filled in accordance with the regulations described in subparagraph (A)(i), the report shall so certify, and where the job openings were not filled in accordance with such regulations, the report shall contain a statement providing reasons for noncompliance. The statistical report shall be available to the public at the central office and at every location where more than five full-time employees are regularly assigned to work."
1. This provision of the law prohibits CPB from distributing its federally appropriated funds to any licensee or permittee of a public broadcasting station with more than five full-time employees that has not filed with CPB the annual statistical report required by Section 396(k)(11). The statistical report must: (a) identify by race and sex the number of employees in each of eight full-time and part-time job categories (officials and managers; professionals; technicians; semi-skilled operatives; skilled craft persons; clerical and office personnel; unskilled operatives; and service workers); and (b) state the number of job openings occurring during the course of the year. The law also requires that this statistical information be made available to the public at the central office of the station and at every location where more than five full-time employees are regularly assigned to work.
2. The provision also requires that every licensee or permittee of a public broadcasting station that receives federally appropriated funds from CPB must certify to CPB that it complies with the FCC regulations concerning equal employment opportunity or any successor regulations. Each licensee or permittee of a broadcast station with more than five full-time employees must further certify that the job openings identified in the statistical reports described above were filled in accordance with such FCC regulations, or provide a statement of the reasons for not filling the positions in accordance with such regulations.
Although licensees and permittees of public broadcast stations with five or fewer full-time employees are not subject to the reporting and public records requirements in this provision of the law, CPB does require that all station grant recipients submit annually to CPB the information required in the statistical report.
C. Result of Noncompliance
The law provides that CPB may not distribute any of its funds to the licensees and permittees of public broadcast stations that do not make the necessary certifications, file the required statistical report annually with CPB, or make such statistical information available to the public as required by the law.
III. MINIMUM COMPLIANCE REQUIREMENTS
A. All Licensees and Permittees
The law requires that all licensees and permittees of public broadcasting stations that receive federally appropriated funds from CPB must certify to CPB that they comply with the above-referenced FCC regulations concerning equal employment opportunity.
B. Licensees and Permittees with More Than Five Full-time Employees
In addition to III.A above, the law requires that licensees and permittees of public broadcast stations with more than five full-time employees must do all of the following:
1. file annually with CPB the statistical report described above (although not required by law for stations with five or fewer employees, CPB requires that all station grant recipients file such statistical information with CPB annually);
2. certify that the job openings identified in the statistical report were filled in accordance with FCC regulations or provide a statement of the reasons for not filling the positions in accordance with such regulations; and
3. make this statistical information available to the public at the central office of the station and at every location where more than five full-time employees are regularly assigned to work.
IV. SUGGESTIONS FOR COMPLIANCE
As to the FCC regulations regarding EEO, it must be understood that CPB does not regulate or enforce EEO or nondiscrimination compliance. Neither does CPB provide legal counsel of any kind concerning EEO or nondiscrimination laws and/or regulations.
Accordingly, because the FCC's EEO regulations have changed in recent years, CPB recommends that stations contact their legal counsel directly for any and all legal advice in this regard.
CPB does suggest, however, that stations may be able to satisfy the public information requirement by making available the appropriate sections from the CPB Station Activities Benchmarking Study ("SABS") or the annual Station Activity Survey ("SAS") (see V.A., below). For additional suggestions about complying with the requirement that the statistical information be made available to the public, see Part IV of the OPEN FINANCIAL RECORDS REQUIREMENTS section.
V. CPB PROCEDURES FOR COMPLIANCE AND CERTIFICATION
CPB currently requires that the statistical information be provided annually in the employment portion of the Station Activities Benchmarking Study ("SABS") or the annual Station Activity Survey ("SAS") which every CPB supported station -- regardless of the size of their work force -- must file with CPB.
1. CPB currently requires that the certification of compliance with the FCC's EEO regulations, and, if necessary, the statement of reasons for not filling positions in accordance with the FCC regulations, be provided annually in the Integrated Station Information System ("ISIS") and must be filled out by each CPB station grantee.
2. All such Certification of Eligibility forms must be completed in their entirety and executed by two different individuals: (1) an authorized official of the licensee responsible for executing grants and/or contracts for the licensee who has knowledge and authority to certify that the licensee and its station meet or exceed each of the eligibility criteria listed in the Certification of Eligibility (e.g., chairman, treasurer or secretary of the board of directors, university vice president for finance, president of the school board); and (2) the chief executive officer in charge of the operation of the station (e.g., president, general manager, or station manager).
1. Each licensee or permittee of a public broadcast station, after reviewing the above information, is to develop documentation that may be used to verify the statistical employment information reported to CPB through the SABS or SAS and/or included in the public record. In addition, each station should develop documentation indicating the manner of compliance with public record requirements of this provision of the law. This documentation should contain information that will indicate, for example, the type of records made available to the public (by specific description), the mechanisms by which the records are made available (and, if appropriate, the location of these records), the arrangements made for reproduction of the documents by members of the public, and any limitations placed on access to such records by the licensee.
2. The documentation shall be kept at a reasonable location by each station and made available to CPB, upon request, to verify the accuracy of the statistical employment information, and to determine the fact and extent of compliance with the public record requirement of this provision of the Communications Act. However, CPB will not investigate (a) whether the stations are in compliance with the FCC's EEO regulations, or (b) any EEO complaints filed against any licensee or permittee of a public broadcast station.
3. The documentation shall also be made available to CPB auditors upon request in the course of a periodic audit.
VI. OTHER EEO REQUIREMENTS
It is important to note that this is NOT a comprehensive summary of all of the EEO requirements or nondiscrimination provisions found in the Communications Act or in other laws and regulations with which broadcast stations must comply. (For example, such other laws may include, but are not limited to: the Americans with Disabilities Act of 1990 (42 U.S.C. 12101); the Civil Rights Act of 1964 (42 U.S.C. 2000e); the Equal Pay Act of 1963 (29 U.S.C. 206); the Age Discrimination in Employment Act of 1967 (29 U.S.C. 621-34); Title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d); Title IX of the Education Amendment of 1972 (20 U.S.C. 1681); and Title V of the Rehabilitation Act of 1973 (29 U.S.C. 790-94).
In addition, Section 298 of the Communications Act (47 U.S.C. 398) also contains important EEO requirements of which every station must be aware. Again, since CPB does not provide legal advice to stations, it is recommended that the stations consult their legal counsel for assistance in complying with all of the applicable laws and regulations concerning EEO and nondiscrimination.
If you have questions about these guidelines, please send an e-mail to West Smithers, or call (202) 879-9805.