On Friday, the FCC released its first EEO audit notice for 2026 – and the second to feature questions introduced last year to look for evidence of “invidious DEI” programs in place at broadcast stations. The FCC’s Public Notice, audit letter, and the list of the 400 radio and TV stations (both commercial and noncommercial) selected for audit is available here. Those stations, and the station employment units (commonly owned or controlled stations serving the same area sharing at least one employee) with which they are associated, must provide to the FCC (by uploading the information to their online public inspection file) their last two years of EEO Annual Public File reports, as well as backing data to show that the station in fact did everything that was required under the FCC rules. The response to this audit is due to be uploaded to the public file of affected stations by October 20, 2026. The audit notice says that, if an employment unit selected in this audit was audited in 2024 or 2025, or if their renewal was granted after June 1, 2024, it should notify the FCC, and it might be exempted from the audit. Any station having a question, or needing more time to respond, is instructed to contact the FCC at least 5 days before the October 20 deadline.
In the past, poor EEO performance has led to substantial penalties. A 2023 proposed fine of $25,000 for some Kansas radio stations that had not fully met their EEO obligations (see our article here) showed that it is important to review your EEO compliance, even if your stations are not subject to this audit. As the response (and the audit letter itself) must be uploaded to the public file, it can be reviewed not only by the FCC, but also by anyone else with an internet connection anywhere, at any time. The Kansas fine proposal, plus a $26,000 fine imposed on Cumulus Media in 2024 for a late upload of a single EEO Annual Public File Report (see our article here), shows how seriously the FCC has in the past taken the EEO obligations. To date, the FCC under Chairman Carr has not proposed any EEO fines. Instead, the FCC’s focus when reviewing employment issues seems to be DEI programs, and this audit, as with the first EEO audit of the Carr administration in 2025, includes a number of questions, discussed below, designed to identify DEI programs at broadcast stations that this Commission may want to review.
DEI issues have already played an outsized role to this FCC, being the cited reason for the requirement for the filing of early license renewal applications by the Disney/ABC owned stations, and also factoring into delays of other broadcast and non-broadcast mergers under review by the FCC – where approvals apparently were delayed until major companies agreed to dismantle their DEI programs.
These EEO audit letters now seek out information about programs that favor one race, ethnicity or gender in hiring and other employment evaluations. There are four paragraphs requiring the audited station to respond to various DEI questions. First, section 2(b)(vi)(a) of the letter asks about any complaints made by employees either internally to station management or externally to relevant authorities of “any bias, sensitivity or any other matters related to race, color, religion, national origin or sex.” The next paragraph, 2(b)(vi)(b) goes further and asks the audited station to report if “any Unit employee(s) has been reprimanded, reclassified, repositioned, demoted, dismissed or otherwise sanctioned for failing to comply with or affirm policies or programs regarding race, color, religion, national origin or sex.”
The next question, 2(b)(vii), goes beyond employment per se to ask if any station policies favor those with particular racial or gender characteristics. This item requests that the following be provided in response to the audit: “A copy of any formal or informal agreement, contract, policy, practice, or other document that impose requirements or goals (aspirational or otherwise) regarding race, color, religion, national origin or sex on the Unit, contractors, employees or any third parties providing services on behalf of the Unit.” That question continues, asking “whether any Unit employees, its contractors or third parties acting on behalf of the Unit are or can be selected, promoted, or terminated as a result of such agreements, contracts, policies or practices.”
And the final new question asks licensees to “List and describe any use by the Unit of race-based hiring databases, and specify the position(s) for which they are used.”
Regardless of one’s positions on the merits of DEI programs, as we have written before, the addition of these questions – without prior public notice or comment on their use – leaves respondents with some degree of uncertainty about exactly what is being asked and how extensive a response to these questions need to be.
The questions also include religion among the classes where preferences appear to be suspect. Yet many religious broadcasters have such preferences for members of their own faith, which is explicitly permitted under the Commission’s rules.
In addition to the DEI questions, the standard EEO questions that have been on audit letters for many years need to be answered by those who are audited. Audited stations must provide sample copies of notices sent to employment outreach sources about each full-time vacancy at stations in the employment unit, as well as documentation of the supplemental efforts that all station employment units with 5 or more full-time employees are required to perform (whether or not they had job openings in any year). These non-vacancy specific outreach efforts are designed, for example, to educate the community about broadcast employment positions and to train employees for more senior roles in broadcasting.
Audited stations must also provide information about how they self-assessed the performance of their EEO program. Information about any pending or resolved proceedings involving discrimination claims also must be reported. As with the last FCC audit, the FCC staff will review the audit responses and ask for additional information if they find the public file documentation to be incomplete. In the recent past, the FCC has said that it would not inform audited stations that their EEO performance was found satisfactory.
A few years ago, at the Wisconsin Association of Broadcasters annual convention, I did a presentation on the FCC requirements for EEO compliance. The slides from that presentation are available here. The FCC rules are designed to bring new people into broadcast employment positions – looking for broadcasters to recruit from outside the traditional informal networks that may exist within the broadcast industry when hiring new employees. Not only should broadcasters reach out to their consultants and employees for referrals, and use their own airwaves to promote openings, they need to be using recruitment sources that are designed to reach all groups within a community to notify members of these groups about the availability of open employment positions at a station. While the FCC once required that broadcasters use a plethora of community groups and other non-Internet recruitment sources, the FCC has since recognized that online recruitment sources alone can reach the entire community (see our summary of that decision here) – but these sources need to be evaluated regularly to assure that they are in fact bringing in applicants for job openings representative of different groups within the station’s employment area. If online recruiting does not bring in applicants and interviewees for job openings from sources outside one’s own company and employees, stations should consider expanding their recruitment sources. Many stations find outreach to at least some community groups, in addition to online sources, brings the best mix of potential applicants to stations filling job openings.
Stations need to keep the required documentation to demonstrate their hiring efforts, as failing to do so can still lead to fines, as in the cases noted above. The documents should show not only the station’s hiring efforts in connection with job openings, but also the supplemental outreach efforts that they have taken, even where they have not had job vacancies, to educate their community about broadcast employment and to train their employees to assume more responsibilities. Stations should review their policies to make sure that they have the documentation necessary to satisfy an FCC audit, by making sure that the station’s EEO program regularly brings in recruits from many sources, and that the station has done the required non-vacancy specific educational efforts on broadcast employment.
Stations that employ fewer than five full-time employees continue to be exempt from the FCC’s EEO reporting rules. All other broadcasters, even broadcasters not on this audit list, should review the audit questions and assure themselves that they can provide the necessary information – and not raise questions under FCC policies – should they be included on the next audit list likely to arrive sometime in 2027. In addition, with the license renewal process for broadcasters beginning in 2027, another opportunity for the FCC to assess your EEO performance will arise. So be prepared – assess your compliance, talk to your attorneys and advisors, and keep accurate paperwork so that you are ready to respond to any EEO review that might arise.