Broadcasters are united in their effort to convince the Federal Communications Commission that more “pragmatism and equity” are needed for the agency’s Equal Employment Opportunity (EEO) rules, not enforcement. But a group of more than three dozen advocacy groups isn’t yet ready to throw in the towel, and they’re pushing the FCC to instead use the tools at its disposal to help diversify the ranks of radio and television employees.

Led by the Multicultural Media, Telecom and Internet Council (MMTC) and the National Council of Negro Women, the 38 organizations propose the EEO data collected from stations be available when the agency is working to determine whether a station engaged in racial or gender discrimination. The coalition says a staff’s homogeneity may show that a station has perpetuated the lack of diversity by recruiting by “word of mouth.” It also wants the FCC to restart the collection of annual employment reports (Form 395-B). The form collected data about the race and gender of station employees until 2004, when FCC lawyers concluded it had constitutional and statutory obstacles. The EEO supporters dispute that conclusion, saying the only pressure the reports put on broadcasters was to comply with FCC rules to “recruit broadly,” such as by posting openings online or connecting with candidates through community groups.

The National Association of Broadcasters is pushing back at restoring the use of Form 395-B. It said the current rules are likely “as expansive and effective as possible” under the guideposts established by Supreme Court decisions. In a filing with the FCC, the NAB notes the Enforcement Bureau already requires stations to supply information such as data on all interviewees and new hires, copies of vacancy advertisement, the sharing of job announcements with requesting organizations, and other outreach activities. The trade group warns pushing for reinstatement of annual employment reports could have the opposite effect of what the advocacy groups want. NAB said the current rules have been “carefully crafted” and already “push the boundaries” of what’s constitutional. It warns imposing new and expand rules “could threaten their sustainability” if challenged in federal court.

But the advocacy groups say the NAB’s argument misses the mark and a station with a homogeneous staff could avoid sanctions simply by using the internet or community groups to seek job candidates. “Thus, if there is any ‘pressure,’ it is just pressure to take the simple and almost zero-cost step of recruiting broadly,” it tells the FCC in a filing.

Where Are The Violators?

In a series of comments with the FCC in recent months, broadcasters have called the current EEO regulations burdensome, especially on smaller stations, while at the same time addressing a concern that has failed to be uncovered. “The EEO Rule is unusual in that it imposes this ‘regulatory overhead’ without any evidence of actual past discrimination on the part of the broadcaster,” the state broadcast associations said in a joint filing. “That perhaps explains why the FCC, as far as the state associations can determine, has not found a single broadcaster to have engaged in discrimination since the advent of the first EEO rule in 1969.”

The NAB made the same argument, saying the record does not contain “a shred of evidence” of discrimination in broadcasting. What’s more, it says the process has proven to be “remarkably inefficient” with at least 15,000 audits conducted over the years with fewer than 20 violations found—mostly for paperwork mistakes. “The better course is for the Commission to reduce the burdens of the audit process, at the very least for small stations such as those with 10 or fewer employees,” the NAB proposes.

The state broadcast associations also said the audits have become “repetitive and unproductive” and it notes a station’s EEO performance is already reviewed at license renewal and in Mid-Term reviews.

MMTC earlier said it believed the FCC should expand the use of audits, proposing a pilot program be used to assess their practicality, cost and impact. MMTC has also suggested the FCC create a so-called whistleblower telephone hotline that would help the Enforcement Bureau learn of potential violations from people working in the industry.

A group of 82 broadcasters earlier said it would support requiring wide outreach for every fulltime broadcast station job, no matter how few employees the company has. But the owners said during the FCC’s rulemaking no one has presented any specific evidence that has connected the current recordkeeping requirements with reduced discrimination or increased workplace diversity levels. And while the group of owners said they appreciate the advocacy groups’ passion for employment diversity, the broadcasters said “it is time that the FCC reassesses its current documentation and paperwork approach.”

What’s Next?

With the comment window now closed, the FCC will now digest the two very different perspectives as it decides what, if any, changes should be made. Chair Ajit Pai has said he doesn’t believe the collection of Form 395-B should be attempted, agreeing with agency lawyers that it goes beyond what the Supreme Court has said is permitted. Under Pai, the FCC has already moved EEO policing from the Media Bureau to the Enforcement Bureau. He’s also put an emphasis on improving diversity in other ways. That’s included pushing the Commission to approve a radio incubator program and the re-establishment of what’s informally known as the Diversity Advisory Committee.

This year marks the 50th anniversary that radio and television stations have been required to meet the EEO obligations. They not only prohibit a station from discrimination on the basis of race, color, religion, national origin or gender, but they also require stations to provide equal employment opportunities.