Supporting Statement OMB 3060-0113_final version (FCC 23-72)

OMB Control Number: 3060-0113 December 2023

Title: Form 2100, Schedule 396 – Broadcast Equal Employment Opportunity Program Report

SUPPORTING STATEMENT

A. Justification:

1. The Commission adopted on September 18, 2023, the Report and Order (R&O), Amendment of Part 73 of the Commission’s Rules to Update Television and Class A Television Broadcast Station Rules, and Rules Applicable to All Broadcast Stations, MB Docket No. 22-227, FCC 23-72. The R&O adopted a number of revisions to the Commission’s rules to reorganize and clarify the Commission’s technical licensing, operating, and interference rules for full power and Class A television, including a revision to 47 CFR Section 73.2080. No other changes to OMB Control Number 3060-0113, approved August 2021, and restated below, have been made, with the exception of an added description regarding the revision to Section 73.2080. That description is for illustrative purposes only, and also does not create any new or modified paperwork obligations.

The Broadcast Equal Employment Opportunity (EEO) Program Report, FCC Form 2100, Schedule 396 is a device that is used to evaluate a licensee’s EEO program to ensure that satisfactory efforts are being made to comply with the FCC's EEO requirements. FCC Form 2100, Schedule 396 is required to be filed at the time of renewal of license by all AM, FM, TV, Class A and Low Power TV and International stations as well as Satellite Digital Audio Radio Service (SDARS) licensees. If a licensee owns more than one station in the same market that shares employees, it is required to file one Schedule 396 for those stations collectively as a “station employment unit” (SEU).

SEUs with five or more full-time employees must complete the identification, certification and discrimination complaint portions of the form as well as attach its two most recent EEO Public File Reports—an annual report summarizing various recruitment activities of the licensee—and a narrative statement describing its employment outreach generally. If a SEU has four or fewer full‑time employees, it must file only the identification, certification and discrimination complaints portions of the form.

The recordkeeping requirements for FCC Form 2100, Schedule 396 are covered under OMB control number 3060-0214.

History:

On September 30, 1998, the Commission suspended the requirement that television and radio broadcast licensees submit the FCC Form 396 (now known as FCC Form 2100, Schedule 396) at the time of filing their renewal applications. This suspension remained in effect until the Commission revised the EEO rules to be consistent with the D.C. Circuit’s decision in Lutheran Church - Missouri Synod v. FCC (Lutheran Church).

On February 28, 1999, OMB approved the Notice of Proposed Rulemaking in MM Docket Nos. 98-204 and 96-16 (Review of the Commission's Broadcast and Cable Equal Employment Opportunity (EEO) Rules and Policies and Termination of the EEO Streamlining Proceeding). This rulemaking proceeding was initiated to obtain comments concerning the Commission's proposed EEO rules and policies that would be consistent with the Lutheran Church decision. This rulemaking proposed to initiate a new broadcasting EEO rule and to change the Commission's multi-channel video programming distributors (MVPD) EEO rules, to emphasize recruitment outreach programs and provide that entities are not to use racial, ethnic, or gender preferences in hiring. In addition, the new rules reinstated the requirement that broadcast licensees file the FCC Form 396-A at the time they file applications for construction permits, or assignments or transfers of license.

On January 20, 2000, the Commission adopted a Report and Order in the above rulemaking proceeding. This Report and Order modified the Commission’s broadcast and MVPD EEO rules and policies consistent with the D.C. Circuit’s decision in Lutheran Church. The new rules reinstated the requirement that broadcast licensees file the FCC Form 396 at the time they file for renewal of license.

Following the D.C. Circuit’s January 2001 decision in MD/DC/DE Broadcasters Association v. FCC (Association), which vacated the FCC’s broadcast EEO rules for recruitment, the Commission on January 31, 2001, again suspended the requirement for broadcast licensees to file the FCC Form 396. On December 21, 2001, the Commission issued a Second Notice of Proposed Rulemaking to replace the EEO rules for both broadcast and MVPDs, including a new FCC Form 396.

On November 7, 2002, the Commission adopted a Report and Order establishing new EEO rules and forms to comply with the court’s decision in Association. The new rules reinstated the requirement that broadcast licensees file the FCC Form 396 at the time they file for renewal of license. The new EEO rules also ensure equal employment opportunity in the broadcast and MVPD industries through outreach to the community in recruitment and prevention of employment discrimination.

With regards to SDARS licensees, the Commission determined that they must comply with the Commission’s EEO requirements in 1997. See Establishment of Rules and Policies for the Digital Audio Radio Satellite Service in the 2310-2360 MHz Frequency Band, 12 FCC Rcd 5754, 5791, para. 91 (1997), FCC 97-70. In 2008, the Commission clarified that SDARS licensees must comply with the Commission’s EEO broadcast rules and policies, including the same recruitment, outreach, public file, website posting, record-keeping, reporting, and self-assessment obligations required of broadcast licensees, consistent with 47 CFR 73.2080,¹ as well as any other Commission EEO policies.² See Applications for Consent to the Transfer of Control of Licenses, SM Satellite Radio Holdings Inc., Transferor, to Sirius Satellite Radio Inc., Transferee, 23 FCC Rcd 12348, 12426, para. 174, and note 551 (2008).

This information collection does not affect individuals or households; thus, there are no impacts under the Privacy Act.

The statutory authority for this requirement is in accordance with Sections 154(i) and 303 of the Communications Act.

2. This report is reviewed by EEO specialists to ensure that licensees widely disseminate information about job openings and perform the required amount of general employment outreach activities to ensure that all qualified applicants are able to compete for jobs in the broadcast industry.

3. The Commission requires applicants to electronically file FCC Form 2100, Schedule 396.³

4. No other agency imposes a similar information collection on the respondents. There are no similar data available.

5. In conformance with the Paperwork Reduction Act of 1995, the Commission is making an effort to minimize the burden on all respondents. This program considers the needs of small stations by requiring stations with fewer than five full‑time employees to file only the identification, certification and employment discrimination complaints portions of the form. In addition, there is currently only one SDARS licensee which does not qualify as a small business. Therefore, this information collection will not have a significant economic impact on a substantial number of small entities/businesses.

6. This form is required to be submitted with the renewal applications of broadcast and SDARS licensees to determine whether grant of the license renewal application is in the public interest. Infrequent submission would provide insufficient information upon which to make that determination.

7. This collection of information requires that records be retained for one license term. Pursuant to Section 73.3526 of the Commission’s rules, this retention period is necessary to provide the FCC and the public with information to evaluate the station's performance during its entire license term.

8. The Commission last published a Notice (88 FR 70980) in the Federal Register on October 13, 2023, seeking comment from the public on the information collection requirements contained in this collection. No comments were received from the public.

9. No payment or gift was provided to the respondents associated with this collection.

10. There is no need for confidentiality with this collection of information.

11. This form does not address any private matters of a sensitive nature.

12. As noted above, FCC Form 2100 Schedule 396 is required to be filed at the time of renewal of license by all AM, FM, TV, Class A and Low Power TV and International stations as well as Satellite Digital Audio, which is generally once every eight years. However, to provide an average annual burden figure as required by OMB, we estimate that 2,960 SEUs will file Schedule 396 at a burden of 2 hours. Of those 2,960 SEUs, we estimate that 1,056 will have four or fewer full-time employees and, therefore, will only need to complete a portion of the form. The average burden on the 1056 SEUs will be half an hour (0.5).

These estimates are based on FCC staff's knowledge and familiarity with the availability of the data required.

Total number of annual respondents: 2,960 respondents [1,904 SEUs + 1,056 SEUs (four or fewer employees)]

Total number of annual responses: 2,960 forms

Annual Hourly Burden:

1,904 SEUs x 2 hours/filing = 3808 hours

1,056 SEUs x 0.5 hour/filing = 528 hours

Total Annual Hourly Burden: 4,336 hours

Total Annual “In-house” Cost: We expect the respondent to complete FCC Form 2100, Schedule 396. We estimate they have an average salary of $100,000/year ($48.08/hour).

1,904 SEUs x 2 hours/filing x $48.08/hour = $183,089

1,056 SEUs x 0.5 hrs./filing x $48.08/hour = $25,386

Total Annual “In-house” Cost: $208,475

13. Annual Burden Cost: We estimate 1,480 respondents (50% of total respondents) will also have an attorney review the FCC Form 2100, Schedule 396 before the respondent make a submission to the Commission. We estimate the attorney salary at $300/hour and estimate the review time is 1.5 hours.

Total Annual Cost Burden: 1,480 applications x $300 x 1.5 hour = $666,000

14. Cost to the Federal Government: The Commission will use an EEO Specialist at the GS-12, step 5 level ($51.15/hour) to process the FCC Form 2100, Schedule 396.

1,904 forms x $51.15 x 2 hours/filing = $194,779.20

1,056 forms x $51.15 x 0.5 hours/filing = $ 27,007.20

Total Cost to the Government: $221,786.40

15. There are no program changes or adjustments to this collection as a result of the rules which contain information collection requirements in FCC 23-72.

16. The data will not be published.

17. We request extension of the waiver not to publish the expiration date on these forms. This will obviate the need for the Commission to update electronic forms upon the expiration of the clearance. OMB approval of the expiration date of the information collection will be displayed on OMB’s website..

18. There are no other exceptions to the Certification Statement.

B. Collections of Information Employing Statistical Methods

No statistical methods are employed.

1 The R&O revises Section 73.2080(c)(6) and (f)(1) to specify the current form number in which electronic filings are made on. See also infra n.3.

2 This collection contains only the renewal reporting requirement.

3 On April 9, 2003, the Commission released Public Notice DA 03-1116 announcing the mandatory electronic filing of FCC Form 396 (now known as FCC Form 2100, Schedule 396). Mandatory electronic filing for this form began on April 1, 2003. A paper-filed copy of FCC Form 2100, Schedule 396 will be accepted only if accompanied by an appropriate request for waiver of the electronic filing requirement. All paper filers must plead with particularity the facts and circumstances warranting grant of a waiver. A waiver will not be routinely granted.

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