Embrace the Internet for EEO "Widely Disseminated Rule"

As I have said previously, I believe the Internet is the greatest man-made invention in my lifetime. We spend a considerable amount of time and effort at the Commission determining how best to remove barriers to its deployment, studying and reporting its speed and availability, scolding broadband companies for not doing enough and, in some cases, providing American ratepayer subsidies to ensure it will reach all corners of our country.  Therefore, it comes as a surprise – and a disappointment – that we don’t embrace it when it comes to compliance with existing Commission rules.  I previously highlighted that the Internet was the appropriate vehicle for providing broadcast contest rules, and the Commission has been updating our regulations accordingly, but the Internet may be just as important for communications companies trying to attract a diverse workforce. 

The Commission’s Equal Employment Opportunity (EEO) rules require broadcast and cable companies to distribute information far and wide—and provide evidence of such outreach—when they have open positions to be filled.  Specifically, the rules require broadcasters with five or more, and multi-channel video programming distributors with six or more, full-time employees to cast a wide net to recruit minority and female applicants for all full-time job vacancies. These employee search efforts are required to be part of companies’ public files, which are either currently online or likely to be in the near future, and are subject to random Commission audits to ensure compliance and analyze performance.  And companies are subject to enforcement actions when EEO rules are not followed.    

The Commission’s application of one of its EEO rules is based on a remarkably outdated assessment of Internet deployment and access in the United States. In particular, the Commission reaffirmed recently in an enforcement action that using the Internet (and word-of-mouth referrals and walk-in applicants) to widely disseminate information and recruit prospective employees is not sufficient to comply with the Commission’s EEO rule, specifically section 73.2080(c)(1)(i).  This is because, at the time of adoption in 2002, the Commission relied on a 2001 NTIA report that suggested 50 percent of U.S. households had Internet service, and only a slightly larger percentage used the Internet from any location.  So based on an estimate of Internet availability circa 2001, companies are now forced to duplicate their recruiting efforts using other less efficient technologies and outreach methods just to stay in compliance.  This added effort and cost for little to no benefit should cause the Commission to reconsider its previous position.        

Let me be clear:  I am not suggesting in any way that we alter or modify our overall EEO requirements. I wholeheartedly agree that wide dissemination of information about job opportunities can be one key element to assembling a diverse applicant pool.  However, we need to recognize the current marketplace realities in terms of what types of communication should qualify as “widely disseminated.”  The Internet was certainly available when this EEO rule was last revised in November 2002, but even the greatest technological skeptic can accept that Internet deployment and availability have changed significantly over the last 12-plus years.  In fact, in 2002, the Commission stated that it “will continue to monitor the viability of the Internet as a recruitment source and will consider petitions seeking to demonstrate in the future that circumstances have changed sufficiently to warrant a change in our policy.”[1]

The great news is that Internet use and availability have continued to increase since the early 2000s.  The FCC’s 2014 Internet Access Services report found that overall Internet connections (both wireline and wireless) increased by 12 percent over the previous year to reach 296 million in 2013.[2]  And this number is already a year old, meaning it is even larger today.  NTIA’s data further highlights the vast growth over the years, finding that as of December 31, 2013, “99 percent of Americans have access to wired and/ or wireless broadband at advertised speeds of 6 Mbps downstream and 1.5 Mbps up.”

Equally important, the Commission has invested billions and billions of E-Rate dollars (with even more to come) – subsidies paid for by the American ratepayer – in our nation’s libraries to transform them into community information hubs with high-speed Internet connections.  Note that the percentage of public libraries that offered public Internet access increased from 95 percent in 2002 to 98.9 percent in 2005; since 2011, it has been 100 percent.  And according to a study by the American Library Association, nearly 100 percent of public libraries offer “workforce development training programs, online job resources, and technology skills training” and 98 percent offer free public access Wi-Fi.  We can’t embrace the ubiquity and benefits of Internet connectivity in public libraries to serve local communities on one hand, and on the other hand reject it as insufficient to reach enough potential job applicants.  We simply can’t ignore the pervasiveness of library Internet access when reviewing Commission rules.         

Moreover, just think of how the Internet has changed the job listing and application process. Employment websites, such as Monster.com, Indeed.com, Careerbuilder.com and many others, are now actively used by both public and private employers to reach applicants.  Additionally, we must be mindful of the multitude of other sites that offer recruiting tools, such as LinkedIn and craigslist.  All together, these technologies have allowed employers to expand the potential talent pool, as well as reduce their overall costs.  The Internet has become a central component in personal networking and job identification.  In fact, many, if not most, jobs in America require applicants to apply via the Internet.  Even the FCC requires applicants to apply online unless it would be a hardship.        

At the same time, traditional means to advertise job openings have collapsed.  For instance, the Commission has a full record as part of its media ownership proceedings from 2010 on the changing local newspaper industry.  Suffice it to say, local want ads are suffering for numerous reasons and shouldn’t be looked upon as widely available in many communities, as the number of daily newspapers continues to shrink or, in fact, move to online distribution.  The same goes for newsletters of media trade groups and probably for a number of other previously relied-upon recruitment methods.

In practice, the application of the EEO rule, and its anti-Internet bias, does not appear to help potential applicants.  Most companies have expansive job-related information and application procedures on their websites.  When companies are required to use other means to advertise job openings, they simply direct interested parties to their websites.  Call a toll-free number?  See a flier at a job fair or receive a mailing?  The instructions invariably direct the applicant to a website.       

In the past, a number of state broadcast associations petitioned the Commission to modify our EEO rule to allow Internet distribution of job openings combined with aggressive notification to referral organizations that have affirmatively demonstrated they want to play a meaningful role in referring applicants to media companies with job openings.  This would seem to make a lot of sense in today’s marketplace and given advances in Internet access over the years. Chairman Wheeler’s past blog post stated: “The communications sector will never stop changing and evolving.  The FCC is committed to updating our policies and processes to facilitate and accelerate these advances to maximize the benefits for the American people.” An update of the EEO rule would be a great next step in the modernization process the Chairman has undertaken.