On April 21, 2017, the FCC issued a Declaratory Ruling updating the FCC’s policy implementing its equal employment opportunity (“EEO”) rules.  Specifically, the FCC found that Internet usage has become sufficiently widespread to permit broadcasters and multichannel video programming distributors (“MVPDs”) to use the Internet as a sole recruitment source to meet the “wide dissemination” requirement in the FCC’s EEO rules. 

The FCC issued the Declaratory Ruling in response to a Petition for Rulemaking filed by Sun Valley Radio and Canyon Media Corporation.  

Background.  The FCC’s EEO rules contain complex outreach, recordkeeping and reporting requirements.  They apply on an employment unit basis and vary depending on the number of full-time employees employed in the unit.   For MVPDs, an employment unit is generally considered to mean a cable system with a headend, though where multiple cable systems are commonly owned or controlled and are interrelated in their local management, operation, and utilization of employees, they are considered to be a single employment unit. 

Included in the outreach, recordkeeping and reporting requirements is a requirement for MVPDs and broadcasters to “use recruitment sources for each [full-time] vacancy sufficient in its reasonable, good faith judgment to widely disseminate information concerning the vacancy.”  Although the FCC provides for flexibility in the number and type of recruitment sources a broadcaster or MVPD, in its reasonable, good faith judgment, may use, the FCC had not previously recognized the Internet as sufficiently widespread to satisfy “wide dissemination.”  Over the past few years, the FCC had issued forfeitures to several MVPDs and broadcasters for relying on the Internet as its sole recruitment source. 

Declaratory Ruling.  The Ruling updates the FCC’s EEO policy in light of the increase in Internet usage and the decline of print-based recruitment sources since the FCC adopted its EEO rules in 2002.  Broadcasters and MVPDs will remain free to select the number and type of recruitment sources used as long as they meet the requirement for wide dissemination, which is satisfied by the broadcaster’s or MVPD’s use of recruitment sources that are reasonably calculated to reach the entire community.  For some communities, online-only job postings may be sufficient.  The FCC encourages employers to consider three factors when using the Internet to fulfill the “wide dissemination” requirement:

• The online job posting must be easy to find;
• Job openings should be posted online for an adequate period time, with auditable interview records maintained; and
• Employers should “continue to cultivate job referral relationships with resources that are likely to include diverse candidates.” 

Although MVPDs and broadcasters may satisfy the “wide dissemination” requirement through online job postings, the FCC will continue to examine case-by-case specifics to determine whether an employer has sufficiently met this requirement based upon the “reasonable, good faith judgment” standard for wide dissemination of full-time vacancies. 

If you have any questions about the declaratory ruling, or the FCC’s EEO rules in general, please contact Scott Friedman at (312) 372-3930 or sfriedman@cinnamonmueller.com.