FCC Reminds MVPDs of EEO Form 396-C Filing Deadline

Notice Lists Cable Operators Who Must File Supplemental Investigation Sheet

On August 3, 2016, the Media Bureau released a Public Notice reminding multichannel video programming distributors (“MVPDs”), including cable operators, that Form 396-C, the FCC’s MVPD Equal Employment Opportunity (“EEO”) Program Annual Report, must be submitted electronically by midnight on September 30, 2016.  To file Form 396-C, login to the Media Bureau’s CDBS Electronic Filing System.

The Public Notice also lists the MVPDs that the FCC randomly selected to file a Supplemental Investigation Sheet along with their Form 396-C.  For this year’s filing, Supplemental Investigation Sheet filers must:

• Include one job description for employees in the category “Technicians” in Part I of the form.

• Answer questions 3,5, and 8 in Part II of the form:

à    Name the organizations, media, educational institutions, and other recruitment sources used to attract applicants whenever job vacancies become available.

à    Describe the employment unit’s efforts to promote in a nondiscriminatory manner to positions of greater responsibility.

à    Describe the manner in which the employment unit conducts its continuing review of job structure and employment practices.

• Attach, as Part III, a copy of the unit’s EEO public file report created in 2016 covering the previous 12 months.

If you have any questions about EEO compliance, please contact Scott Friedman at (312) 372-3930 or sfriedman@cinnamonmueller.com.

FCC Enters Forfeiture Order Against Cable Operator for Violating Commission’s EEO Rules Regarding Recruitment and the Maintenance of EEO Public File Report

On July 25, 2016, the FCC’s Media Bureau released a Forfeiture Order citing a Cable Operator (“Operator”) for failing to comply with the Commission’s recruitment, self-assessment, EEO public file report, and public inspection file requirements with regard to recruiting activities undertaken in 2010 and 2011. 

Background.  The Communications Act and FCC rules mandate that MVPD employment units (“Units”) use recruitment sources for each vacancy in a manner sufficient to widely disseminate information concerning the vacancy.  While the Commission does not require the use of a specific number of recruitment sources, if a source cannot reasonably be expected to reach the entire community, a Unit will be found in noncompliance.  The Commission requires a Unit to recruit from non-Internet sources in order for its recruitment to sufficiently widely disseminate information concerning a vacancy.  Additionally, the Act requires that a Unit compile and maintain an EEO public file report and place its EEO program information on its website.   

 Investigation.  The Bureau audited the Operator for its compliance with the MVPD EEO Rules in 2011.  The Operator submitted its response on January 18, 2012.  On April 11, 2012, the Bureau issued a Notice of Apparent Liability for Forfeiture against the Operator having found that the Operator filled three full-time vacancies and failed to recruit widely for all three vacancies. 

Specifically, the Operator: (i) hired one employee on October 4, 2010 using a vacancy announcement that was posted only on the Operator’s own website; (ii) hired another employee on January 31, 2011 using a vacancy announcement that was posted solely on Craigslist; and (iii) hired a third employee on April 11, 2011 using an announcement that again was posted only on Operator’s own website.  Additionally, the Bureau found that the Operator failed to compile and maintain an EEO public file report for the reporting period ending in 2011.  The Bureau also found that the Operator failed to compile and maintain an EEO public file report for the reporting period ending in 2011 and therefore failed to make its EEO public file reports available for public inspection and to place its EEO program information on its website.  Because of these failures, the Bureau determined that it was not possible for the Operator to have adequately analyzed its recruitment program to ensure it was achieving broad outreach or addressed any problems as a result of its analysis.

Due to the running of the one-year statute of limitations, the Bureau could not redress the failures involved in the hires of October 4, 2010 and January 31, 2011 through monetary forfeitures. Therefore, the Bureau admonished the Operator in the NAL for failing to recruit widely for those two vacancies.  For the third hire, which was within the statute of limitations, the Bureau proposed a monetary forfeiture of $11,000 and imposed reporting conditions on the Operator and any successor owner.  

The Operator responded to the NAL and requested cancellation of the proposed forfeiture.  The Operator argued that its Internet-only advertising was a better way to reach potential qualified applicants than print advertising because it is more effective and far reaching that print advertising in its community.  It highlighted that 69% of Rhode Island homes and 72% of Massachusetts’s homes were connected to the Internet as well as the fact that it sought computer literate applicants so an Internet-only approach made sense.  The Operator argued that it cultivates relationships with technical schools and uses job fairs, cable television advertisements, and referrals for dissemination of vacancy notifications.  The Operator also argued that it made good faith efforts to comply with EEO public file report requirements and acted to conform immediately after being notified of its non-compliance.  It explained that any violations were the result of innocent omission and that it would immediately cure any failure related to reporting. 

Forfeiture Order.  The Media Bureau rejected the Operator’s arguments and found that while the rules do not require the use of a specific number of recruitment sources, if a source cannot reasonably be expected, collectively, to reach the entire community, then a Unit will not be in compliance with the Act.  The Bureau determined that, according to the Operator’s own calculations, 31% of Rhode Island homes and 28% of Massachusetts homes are not connected to the Internet and therefore do not have readily available access to Craigslist or the Operator’s website.  Further, the Commission’s EEO policy requires a Unit to recruit from non-Internet sources, as well as Internet sources.  The Bureau also cautioned the Operator on relying only on its own employees or private contacts as that would not constitute recruitment according to the Commission’s rules.

The Bureau also rejected the Operator’s arguments regarding its public inspection file, finding that remedial action taken by an Operator after notification of a violation does not mitigate the forfeiture.  The Commission stated that corrective action taken to come into compliance with Commission rules or policy is expected, and does not nullify or mitigate any prior forfeitures or violations.

The Commission may assess forfeiture when any person has willfully or repeatedly failed to comply with any provision of the Act or any rule, regulation, or order issued by the Commission.  While the Commission’s Forfeiture Policy Statement does not establish a base forfeiture amount for EEO violations, it does provide an amount of $3,000 for failure to file required information and of $10,000 for failure to comply with the public inspection file rule. 

The Bureau concluded that the Operator did not offer a reasonable basis for cancellation or reduction of the forfeiture.  While the Operator asserted that its failure to recruit properly applied to only one vacancy out of 21 total employees, the Commission calculates the percentage of improperly recruited vacancies in comparison to the total number of vacancies filled and not to the total number of current employees.  Additionally, the Bureau pointed out that this was not the first time the Operator was issued a Notice of Violation.  Therefore, the Operator did not qualify for a reduction of the forfeiture amount based on a history of overall compliance with the rules.  Accordingly, monetary forfeiture in the amount of $11,000 for violations of the Commission’s rules was assessed. 

This action is yet another signal that the FCC will vigorously enforce its EEO and public file rules, seek forfeiture against non-compliant Units, and issue admonishments even in cases where the statute of limitations on the violation bars the impositions of monetary penalties.  As this Order demonstrates, the FCC will not permit Internet-only recruitment techniques or cancel a forfeiture in consideration of post-notification remedial action.   

If you have any questions regarding EEO rules and public filing requirements, please contact Scott Friedman at sfriedman@cinnamonmueller.com or (312) 372-3930 or bbeard@cinnamonmueller.com or 314-394-1535.

FCC Enters Notice of Apparent Liability Against Cable Operator for Allegedly Violating Commission’s EEO Rules Regarding Recruitment and Self-Assessment Requirements

On August 8, 2016, the FCC’s Media Bureau released a Notice of Apparent Liability for Forfeiture alleging that a Cable Operator (“Operator”) failed to comply with the Commission’s recruitment and self-assessment requirements with regard to recruiting activities undertaken in 2015. 

 Investigation.  The Bureau audited the Operator for its compliance with the EEO Rules in 2015 with respect to one of the Operator’s employment units.  The Operator submitted its response on November 24, 2015 and a further response on July 8, 2016.  On August 8, 2016, the Bureau issued a Notice of Apparent Liability for Forfeiture, citing the Operator’s failure to recruit “widely” for 13 full-time vacancies. The Bureau found that the Operator filled the vacancies using a combination of referrals from existing employees, unspecified referrals, applications on file from walk-in applicants, internal postings, and Internet websites. 

While it is permissible for a Unit to interview or hire a “walk-in” applicant, the Bureau noted that walk-ins do not constitute a recruitment effort under the Commission’s rules.  Similarly, relying only on a unit’s own private contacts, such as employee referrals, does not constitute recruitment as contemplated under the rules, which require public outreach.  Furthermore, the Bureau found that internal postings do not result in sufficient public outreach and recruiting solely from Internet sources does not satisfy the requirement to widely disseminate information concerning vacancies.  The Bureau claimed that, based on these facts, it was not possible for the Operator to have adequately analyzed its recruitment program to ensure it was achieving broad outreach or addressed any problems as a result of its analysis. 

Due to the running of the one-year statute of limitations, only the alleged failures involved in the August 24, 2015 hire could be addressed through monetary forfeitures.  The Bureau proposes a monetary forfeiture of $11,000 and reporting conditions on the Employment Unit and any successor owner of the Employment Unit for the next three years.  The Bureau noted that an upward adjustment in the penalty was warranted because the Operator had failed to adequately recruit on a number of occasions prior to August 2015. 

Here again, the FCC is signaling operators that it will vigorously enforce its EEO rules, seek forfeiture against non-compliant Units, and will take into account previous infractions to upwardly adjust monetary penalties. 

If you have any questions regarding EEO rules and public filing requirements, please contact Scott Friedman at sfriedman@cinnamonmueller.com or (312) 372-3930 or bbeard@cinnamonmueller.com or 314-394-1535.

FCC Reminds Cable Operators of CVAA Compliance Deadline 

Deadline is Dec. 20, 2016, With Two-Year Deferred Compliance Deadline for Smaller MVPDs

On August 2, 2016, the Media Bureau released a Public Notice reminding MVPDs of the upcoming compliance deadline for accessible user interfaces. 

            Under the FCC’s accessibility rules, certain MVPDs that lease or sell navigation devices will be required to provide, upon subscriber request, devices whose on-screen text menus and guides are audibly accessible (“talking guides”) by December 20, 2016.  While the FCC did grant an extended deadline for some small and mid-sized operators, the extension applies only to (i) MVPD operators with 400,000 or fewer subscribers as of year-end 2012, and (ii) MVPD systems with 20,000 or fewer subscribers that are not affiliated with an operator serving more than 10 percent of all MVPD subscribers as of year-end 2012.  These operators have until December 20, 2018 to comply.

The deadline was adopted in the FCC’s 2013 Order implementing portions of the Twenty-First Century Communications and Video Accessibility Act of 2010. 

The Order requires navigation devices (e.g., set-top boxes), provided by “covered entities” (including MVPDs generally, such as cable operators) upon request by certain disabled persons, to:

• Include features that would audibly describe certain on-screen menu functions to make them accessible to individuals who are blind or visually impaired;
• Offer easy access to closed-captioning capabilities.

Navigation devices include converter boxes, interactive communications equipment, and other equipment used by consumers to access multichannel video programming and other services offered over MVPD systems using conditional access functionality.  An operator that only provides a cable channel providing program listing, often in the form of a scrolling grid, is not subject to the accessibility requirements.

To the extent MVPDs can demonstrate that compliance is not “achievable,” they would have a defense against compliance complaints.  Achievability is determined based on a four-factor analysis that examines the cost of compliance, the technical and economic impact on the entity, the entity’s type of operations, and the extent to which they already offer accessible services or equipment. 

Operators not eligible for the extended deadline (i.e., those who had more than 400,000 subscribers at year-end 2012) must be prepared to comply with the rule by Dec. 20, 2016.  The FCC recognized that operators with more than 400,000 but fewer than 2 million subscribers might have difficulty complying in a timely manner due because larger operators get priority from equipment manufacturers, and provided that they may seek an extension of the compliance deadline if they determine they need additional time to comply and can provide evidence in support of the request. 

For more information on the specific compliance requirements of the accessibility rules, please click here. 

If you have further questions, please contact Barbara Esbin at besbin@cinnamonmueller.com (202) 872-6811, or Scott Friedman at sfriedman@cinnamonmueller.com or (312) 372-3930.