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Interpreting the “small station” exception to the FCC’s EEO rules

Most broadcasters are aware of the so-called “small station exception,” in the FCC’s EEO rules that says  Station Employment Units (SEUs) with fewer than five employees are exempt from the formal FCC EEO program requirements.

The same rule also says that SEUs with five to 10 full-time employees and small market stations need engage in only two, rather than four, of the EEO “menu” activities every two years. 

Additionally, a mid-term report is not required of radio stations with 10 or fewer full-time employees, TVs with fewer than 5, and small market SEUs.

An astute broadcaster recently commented to  attorney Gregg Skall of TAB Associate member law firm Womble Carlyle Sandridge & Rice after a webinar that the size of the staff at small stations often will fluctuate.

In such instances, the broadcaster wanted to know, at what point in time does a station make the employee count -- at the anniversary of the renewal, any time during the year when the full-time employee count might reach five,  or when?

For example, consider the following scenario. 

An SEU starts its "EEO Year" (the 12-month period following the anniversary of its license renewal filing date) with four full-time employees.

 A month later it adds a fifth full-time employee (not counting the owners). 

The new, fifth employee resigns three months later, returning the SEU to four full-time employees.

 Thus, the SEU employed less than five full-time employees on the anniversary date at the time when the prior-year EEO Public File Report was filed and will employ fewer than five full-time employees on the date when the next year’s EEO public file report is to be prepared and filed. 

At all times, except for about 10 weeks, the SEU had fewer than five full-time employees. 

So, how does one analyze this situation under §73.2080 (d), the small station exemption, which provides that its other provisions do not apply to station employment units that have fewer than five full-time employees? 

 Boiled down, the questions are:

  • Does this station qualify as a small station exemption? 
  • When do you count the number of employees? 
  • Suppose the 10 weeks when the station had five full-time employees had included the anniversary of its license renewal filing date, and therefore it would have had five when the EEO Public File report was required to be filed?  Would that require a different result?

Skall says there is nothing to provide guidance in the FCC’s EEO Report & Order on this issue and there have not been any cases or policy statements on this issue. 

However, upon inquiry, the FCC EEO staff advised that they will generally use the annual public file filing due date for determination of an employment unit’s five or more full-time staff status under the small station exemption.

Thus, if a unit has four employees on April 1 when it is supposed to file its EEO public file report, no report would be due and it would not have to have an EEO program. 

If a month later, the station hires another full-time staff member, it would have five full-time staff and from then on, as long as it has five or more, it has to have a program and keep records, file reports and comply with all elements of the program. 

If it loses a staff member and goes to four again, then it does not have to have a program or keep records or file reports required of those who have programs. 

When stations go back and forth like this, the FCC staff reports that, under the regulations, the SEU can turn its program on and off over and over, if that is what it chooses to do. 

Or it could just keep its program in place. 

But when something has to be filed, like a renewal or public file report, its status will be determined as of the due date. 

If an SEU has five or more full-time employees as of a filing due date, then it needs to make the required program filings. 

However, if the station has gone through a period or periods of having fewer than five full-time employees and it has not had a program at all times, then it should nevertheless reflect that fact in its report. 

Skall says the station should explain that it had fewer than five full-time staff during certain periods and had no program then, and so its report reflects only periods when it had a program in place. 

If, therefore, a station were to have five or more as of a due date and had been in this status for only 10 weeks, then the report would cover the previous 10 weeks instead of the previous 12 months.

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