Starks, Rosenworcel Getting EEO Proceeding, Criticize FCC Media Update

Though the chairman's office rejected their request for a proceeding seeking comment on restoring the data collection, it led to the FNPRM, Starks and Rosenworcel said. “I am hopeful that interested parties can utilize that forthcoming docket to raise their voices regarding any EEO shortcomings, including data collection,” Starks said. Pai said he's “glad” the two sides reached agreement, saying the 30-day turnaround Rosenworcel and Starks originally sought was “not realistic.” Commissioner Mike O’Rielly declined to “prejudge” the result of the FNPRM but expressed concerns that the ideas generated in the proceeding could violate the Constitution or Supreme Court precedent.

Starks and Rosenworcel want the FCC to take the final steps to resurrect Form 395-B, which collects data on broadcast workforce diversity. Congress and OMB authorized the form, conditional on the FCC resolving a question about whether collected data should be anonymized. That issue has remained open for 15 years, Starks said. It’s “disappointing “ the media modernization proceeding led it to focus on eliminating midterm EEO reports but not take the last steps on Form 395-B, Starks said.

Both Republican- and Democratic-controlled commissions have passed on enacting the EEO data collection because of the likelihood of litigation, said Pillsbury Winthrop broadcast attorney Scott Flick, who represented broadcasters in previous court proceedings over such FCC rules. If the agency passes a new policy, it could lead to a broad legal challenge of the agency's EEO rules, and even the current ones could be wiped out by a constitutional challenge, Flick said. The commission lost previous such court challenges.

Starks will pay attention to future media modernization items for other overlooked opportunities, he said. ”If I told you I was going to 'modernize' my car, you wouldn’t expect me to remove its engine, wheels and seats, and leave it immobile in my driveway.” Future deregulation should include guarantees that the FCC is otherwise addressing “underlying statutory obligations,” he said. Since Pai began the media modernization series of items, they have been largely uncontroversial, and drawn few opposition votes or comments. The midterm EEO item drew no opposing comments, Commissioner Brendan Carr noted.

Starks and Rosenworcel didn’t object to the order’s elimination of midterm reports, though Starks expressed skepticism the reports burden broadcasters. “The form is completed only once every eight years and the commission estimates that it takes 30 minutes to complete,” Starks said. O’Rielly praised the order for throwing the form on the “trash heap.” Rosenworcel criticized the order for not addressing EEO enforcement issues such as those raised by the Multicultural Media Telecom and Internet Council. “Today’s decision takes a pass,” Rosenworcel said.

The vote to open a comment period on EEO “is long overdue and most welcome,” said MMTC President Maurita Coley in a release. “Let’s not let broadcasters wiggle out of their already very slight requirements to promote diversity and inclusion in an industry in which ownership diversity is abysmal,” tweeted Free Press Senior Counsel Jessica Gonzalez. NAB didn’t comment.

Meeting Notebook

Commissioners unanimously approved an NPRM seeking comment on rule changes that would streamline the licensing processes for low-power FM and noncommercial educational stations (see 1901110033). The NPRM proposes eliminating requirements that NCE amend their governing documents to include diversity pledges, making it easier for applicants to change board members, and making changes to the processes for mutually exclusive applications. Some of the current rules are “needlessly complex” and “can trip up well-intentioned but inexperienced applicants seeking to bring new radio service to their communities,” Chairman Ajit Pai said.

Rosenworcel, who complained last year of canceled meetings with Pai, said that's no longer a problem. Rosenworcel said in May (see 1805100062) Pai had canceled most of the meetings she had scheduled with him since she returned to the agency in 2017. Then-Commissioner Mignon Clyburn made a similar complaint as she prepared to leave (see 1805070036). “I have a meeting with the chairman this afternoon,” Rosenworcel said Thursday. “Since I acknowledged that publicly … we’ve made an effort to meet regularly and I’m glad that we do.” Starks said he met with Pai this week. “I look forward to working with all my colleagues,” he said: “I expect that will continue.”

Commissioners expressed concerns about the threat from Chinese equipment makers Huawei and ZTE (see 1902140060), in news conferences after the meeting. “I don’t think you can separate China from China companies,” said O’Rielly. “I think it’s incredibly problematic and I’ve raised it regarding the ITU, with the equipment, what they’re doing in standard-setting bodies … their desire to capture a number of countries in trade.” The FCC has limited authority on trade, he said. Carr said he “started speaking recently in a broad sense about our values that we want instilled in a 5G network.” There are “governing systems around the world that are very different than ours,” he said. “It is no longer enough for us to be first to 5G, we need to make sure our networks are secure,” Rosenworcel said. The FCC “has got to finish the proceeding it started last year to make clear to every carrier, big and small, what kind of equipment they can put in their networks.” The FCC is reviewing what it might do to counter security threats to U.S. communications networks or the communications supply chain (see 1812210032). The FCC also should require certification that 5G devices meet security standards, she said: “There is so much more that we can do.”

Secretary of State Mike Pompeo warned European countries Monday against technology from Huawei in their networks. Pai said he shares Pompeo’s and the administration’s overall concerns “about the importance of the security of America’s communications network” and that’s why the FCC acted on the security NPRM last year. The FCC is working with other parts of the government and other stakeholders “to make sure that we have all the facts,” he said. “As to what the ultimate outcome of that proceeding will be, I obviously can’t forecast.”

Pai said the FCC remains focused on curbing Lifeline waste, fraud and abuse, so support can target low-income consumers who need help. He declined to say whether a proposed reseller ban is dead after a court shot down the agency's ban on resellers receiving enhanced tribal support (see 1902010051), and on whether changes are needed to rollout of a national verifier of consumer eligibility. Rosenworcel said the court reversal signals the agency should "turn around" and "get it right" by creating opportunities for the needy, including through continued reseller participation.