The U.S. Court of Appeals in Washington has for a second time struck down the FCC's 2000 version of the EEO rules. In 1998, the Court found unconstitutional an earlier version, finding that those rules pressured stations to grant preferences to minority applicants by requiring them to compare the percentages of minorities on their staffs with the local labor force.
In 2000 the FCC adopted completely new EEO rules, offering two options. Option A was a complex set of recruitment requirements that did not specifically reference minorities. Option B allowed licensees to design their own recruitment plans, but required record keeping on minority applicants and hires.
In January of this year, the U.S. Court of Appeals struck down Option B because it focused more on results than efforts. The Court held Option B was unconstitutional, and stated that it was impossible to sever Option B from Option A in order to allow Option A to remain in place. The Court explained that the reason the FCC provided for adopting Option B was too similar to that for Option A to separate them.
In February, in response, new FCC Chairman Powell, with support from a majority of the commissioners on the FCC, asked the Court as a whole (rather than the normal three-judge panel) to reconsider the decision, something it rarely does. The Court agreed, but on reconsideration, again held the EEO rules unconstitutional.
The only option for further appeal would be the U.S. Supreme Court. The FCC has not indicated an interest in fighting that battle. Instead, Chairman Powell has stated publicly he would like the other commissioners to join him in proposing new rules more likely to be found constitutional. A new proposal could surface by early next year.
Shortly after the first decision, the FCC suspended its EEO rules while it awaited the Court's decision. Assuming no appeal to the U.S. Supreme Court is taken, the EEO rules will officially terminate shortly when the U.S. Appeals Court's second decision becomes final. In light of the possibility of new EEO rules, however, it may be advisable for stations not to dismantle their EEO record-keeping systems. While no penalties could be imposed for suspending record keeping while no rules are in effect, it may be administratively more difficult to restart than to keep systems in place pending the outcome of any future deliberations.
Satellite must-carry news
July 1, 2001, was the deadline for full-power television stations to send a letter to EchoStar and DirecTV electing either must-carry or retransmission consent on the satellite operator's local-into-local service in their markets. The right to carriage on the satellite systems exists only in markets where the satellite operator is currently picking up the signal of at least one commercial station and retransmitting it back into that station's local DMA (“local-into-local” service). Satellite operators are required to commence carriage of these stations by Jan. 1, 2002.
However, satellite operators are free to commence local-into-local service in new markets at any time, triggering carriage rights for stations in the newly served market. When an operator intends to provide local-into-local service in a new market, it must alert all local stations in that market, in writing, at least 60 days prior to commencement of service. Then, within 30 days of receipt of the notice, each television station must provide written notice to the satellite operator as to whether it elects must-carry or negotiation of retransmission consent for carriage. The station's notification must include its call sign, address, community of license and DMA assignment. The letter must be sent by certified mail, return receipt requested.
In the meantime, the satellite industry is continuing its legal challenge to the satellite must-carry requirements. It has recently consolidated its two appeals with the U.S. Court of Appeals for the 4th Circuit in Richmond, VA, and received an expedited hearing schedule. The industry hopes to have a decision from the Court prior to the Jan. 1, 2002, deadline.
Federal Census data
The results of last year's Census are being released this summer state-by-state. This data will assist those seeking marketing information for the coverage areas of their stations. As in decades past, the Census data is extremely detailed and provides demographic information specific to individual cities, towns and neighborhoods. The data is available on the Internet at the www.census.gov.
Harry C. Martin is an attorney with Fletcher, Heald & Hildreth PLC, Arlington, VA.
Dateline
Annual regulatory fees are due for commercial TV stations Sept. 10 through Sept. 21, 2001. Fee payments are made to Mellon Bank in Pittsburgh and must be accompanied by a signed FCC Form 159.
Oct. 1 is the filing deadline for biennial ownership reports for stations in the following states and territories: Alaska, Florida, Guam, Hawaii, Iowa, Mariannas, Oregon, Puerto Rico, Samoa and Virgin Islands.
Oct. 10 is the deadline for placing July — September issues/programs lists and children's TV programming reports (FCC Form 398) in stations' public files.
Send questions and comments to: harry_martin@intertec.com
