MD/DC/DE Broadcasters Ass'n v. Federal Communications Commission

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Filed June 19, 2001

No. 00-1094

MD/DC/DE Broadcasters Association, et al.,

Petitioners

v.

Federal Communications Commission and

United States of America,

Respondents

Minority Media and Telecommunications

Council, et al.,

Intervenors

Consolidated with

00-1198

On Petitions for Rehearing

---------

Before: Ginsburg, Sentelle and Henderson, Circuit

Judges.

Opinion for the court filed by Circuit Judge Ginsburg.

Ginsburg, Circuit Judge: The respondents in this case, the

Federal Communications Commission and the United States;

one of the petitioners, the United Church of Christ; and the

intervenors, the National Organization for Women and the

Minority Media and Telecommunications Council, have each

petitioned for rehearing. All but MMTC seek rehearing of

the court's decision not to sever Option B from the Commis-

sion's EEO rule after holding that only that aspect of the

challenged rule was unconstitutional. The NOW seeks re-

hearing of the court's decision not to sever all references in

the rule to minorities and thereby leave the rule intact with

respect to women. Only the UCC and the Intervenors seek

rehearing of the court's underlying conclusion that Option B

is unconstitutional.*

The only issue about which the various petitions raise any

points that were not fully considered in our prior opinion is

the severability of Option B. For the reasons set forth below,

__________

* Our dissenting colleague argues that the constitutional question,

too, merits reconsideration, despite the Commission's decision not

to seek rehearing on that issue. In so arguing, the dissent re-

peatedly claims the Commission's only goal is "broad outreach." As

explained in the panel opinion, however, if the Commission's goal

were truly broad outreach, then it could measure compliance by

looking at a broadcaster's outreach efforts rather than -- as it

does -- by collecting data on the race and sex of applicants and

investigating any broadcaster producing "few or no" women and

minorities in its applicant pools. See Review of the Commission's

Broadcast Equal Employment Opportunity Rules and Policies, 15

F.C.C.R. 2329, p 120 (2000) (R&O). On remand, of course, the

Commission is free to revise its EEO rule to make broad outreach

rather than the race and sex of applicants the measure of compli-

ance.

we adhere to our original conclusion that Option B is not

severable and hence deny the petitions for rehearing.

* * *

Before arguing that the panel erred in vacating the entire

EEO rule rather than vacating Option B alone, the Commis-

sion acknowledges that severance is proper in a case where,

as here, the agency has "state[d] its intent [that an unconsti-

tutional portion of a regulation be severed]," only "when such

intent is rational, i.e., ... when 'the remainder of the regula-

tion could function sensibly without the stricken provision.' "

FCC Pet. for Rehearing at 1 (quoting MD/DC/DE Broadcast-

ers, 236 F.3d at 22); see also K-Mart Corp. v. Cartier, Inc.,

486 U.S. 281, 294 (1988).* In this case, the court recognized

that in the rulemaking proceeding the Commission had ex-

pressed its intent as a general preference for severance. See

MD/DC/DE Broadcasters, 236 F.3d at 22 (citing Report &

Order, 15 F.C.C.R. 2329, p 232 (2000) (R&O) ("If any provi-

sion of the rules ... [is] held to be unlawful, the remaining

portions of the rules ... shall remain in effect"). The court

concluded, however, that the rule could not, without Option B,

sensibly serve the goals for which it was designed.

The Commission marshals three reasons that, in its view,

undermine our conclusion. First, citing paragraph 113 of the

decision under review, the Commission argues that it "clearly

stated that Option A was sufficient by itself to achieve the

Commission's goals." See FCC Pet. for Rehearing at 10-11

(emphasis supplied). That, however, is not quite so.

The Commission had two goals in adopting its EEO rule:

It sought to "ensur[e] broad outreach [in recruitment] while

affording broadcasters flexibility in designing their EEO pro-

grams." R&O at p 78. In paragraph 113 of the Report and

Order, in which the Commission now claims that it "clearly

__________

* The dissent questions the panel's interpretation of K-Mart and

produces a passel of arguments. We address here all the argu-

ments raised in the petitions.

stated" that Option A alone could accomplish both its goals,

the Commission actually said this:

We believe that our goal of ensuring that broadcasters

engage in broad outreach so that all qualified job candi-

dates are informed of employment opportunities in the

industry can be accomplished through compliance with

[Option A], without requiring the collection or reporting

to the Commission of applicant pool data.... However,

if a broadcaster wishes to avail itself of the option of

dispensing with the supplemental recruitment measures

[prescribed in Option A] and designing its own program

[pursuant to Option B], we do not think that it is

unreasonable to require it to collect applicant pool data

demonstrating that its outreach efforts are inclusive.

Id. at p 113 (emphasis added). As can readily be seen, the

Commission, despite its present argument to the contrary, did

not state -- "clearly" or otherwise -- that it could achieve

both its goals with Option A alone; at most, it stated that it

believed it could achieve one of its two goals, namely ensuring

broad outreach. It said nothing about the sufficiency of

Option A in achieving the Commission's other goal, namely

"affording broadcasters flexibility."

Second, the Commission argues that in a footnote appended

to an order denying reconsideration of the rule it implicitly

indicated that Option A could function alone. See Reconsid-

eration Order, 15 FCC Rcd. at 22555 n. 19. In that footnote

the Commission stated that if the court should hold the data

collection requirement in Option B unconstitutional, then only

that option should be invalidated. The conclusory statement

in the Reconsideration Order, however, says barely more on

this issue than does the Report and Order under review.

Again, for the Commission to say that it intends that the

court sever Option B if necessary is not to say that the court's

decision to do so would leave a sensible regulation in place.

As we discuss further below, it would not.

Third, counsel for the Commission argues that, even if the

Commission did not previously make clear that in its view

Option A could function sensibly as a freestanding EEO rule,

it has done so now in its petition for rehearing. In that

petition, Commission counsel unequivocally states that "the

Commission would have adopted the remainder of the EEO

rule even without Option B." The Federal Communications

Commission is a collegial body, however; it speaks through

its orders, not through counsel's filings. The dissent points

to a press release issued by a single Commissioner in which

she refers to the petition for rehearing as an action of "the

Commission." The same press release, however, cautions

that "Release of the full text of a Commission order consti-

tutes official action." Yet counsel points to no order taking

the view espoused in the petition for rehearing. Further-

more, counsel's claim is facially implausible.

Recall that in the decision under review, the Commission

told us that it had two goals -- ensuring broad outreach and

affording flexibility. It told us that Option A could satisfy the

goal of achieving broad outreach. And it told us that Option

B was added in order to afford broadcasters flexibility. For

example, in announcing that it would not exempt stations in

small markets from EEO obligations, the Commission ex-

plained:

While we believe that small market stations should be

granted some relief from EEO requirements ... we

believe that such relief is already built into the new

broadcast EEO Rule, which affords flexibility to tailor

EEO programs to a station's particular circumstances,

including market size. For instance, stations in small

markets may find that they need fewer recruitment

sources to achieve broad outreach than might be the case

in larger markets. Also, because stations in smaller

markets are likely to attract fewer applicants, they may

find [Option B] a less burdensome method of assessing

the effectiveness of their outreach.

R&O at p 126; see also id. at p 104.

Throughout the Report and Order, the Commission re-

peatedly considered various proposals and evaluated them

with respect both to their benefits in promoting outreach and

to the effect they would have upon broadcasters' flexibility.

See, e.g., R&O at p 88 (permitting broadcasters to engage in

joint recruiting and noting "there is considerable value in

allowing individual broadcasters flexibility"); id. at p 95 (re-

jecting proposal to send notice of openings to all potential

sources of job applicants); id. at p 97 (granting broadcasters

flexibility in selecting form of notice); id. at p 110 (expressing

desire to "minimize burdens on broadcasters, especially

smaller broadcasters"); id. at p 121 (same); id. at p 126

(rejecting proposal for relief in light of flexibility afforded to

broadcasters, and emphasizing role of Option B to this end);

id. at p 131 (rejecting proposal for relief in light of flexibility

afforded under rule). Thus, Option B played an integral part

in the Commission's evaluation of the rule as a whole; indeed,

in the entire Report and Order the Commission never once

considered the implications of promulgating an EEO rule

without Option B -- except insofar as it implied that without

Option B broadcasters would not have sufficient flexibility.*

Finally, Commission counsel argues that vacating the rule

in its entirety will, by forcing the Commission to repromul-

gate Option A as a new rule, simply cause the Commission

expense and delay. Under the Administrative Procedure Act,

however, we cannot consider that a drawback. As explained

above, in the decision under review the Commission described

its two goals and the role that the two options played in

effectuating them. In light of that decision, it is clear that

severing one of the two options and thereby making the other

mandatory would create a rule that the Commission did not

consider and which, according to the Commission's own analy-

sis in the course of rulemaking, would not have accomplished

the Commission's two goals as it described them. In a

renewed rulemaking effort the Commission may adopt other

measures to accommodate the concerns it expressed about

broadcasters' need for flexibility in general and about the

burden Option A would impose upon broadcasters in small

__________

* The dissent does not address the Commission's reliance, in

denying various exemptions, upon the flexibility provided in the rule

as a whole and in particular by Option B.

markets in particular. Or the Commission may change its

goals. Upon the record as it stands, however, retaining

Option A without further consideration -- and presumably

further notice and comment -- would leave in force a rule

that, in view of the Commission's own stated goals, would be

arbitrary and capricious. Accordingly, the petition for re-

hearing is

Denied.

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Filed On: June 19, 2001

No. 00-1094

MD/DC/DE Broadcasters Association, et al.,

Petitioners

v.

Federal Communications Commission and

United States of America,

Respondents

Minority Media and Telecommunications

Council, et al.,

Intervenors

Consolidated with

00-1198

---------

BEFORE: Edwards, Chief Judge, Williams, Ginsburg,

Sentelle, Henderson, Randolph, Rogers, Tatel, and Garland,

Circuit Judges.

O R D E R

Petitioner's, respondents', and intervenors' petitions for

rehearing en banc and the responses thereto have been

circulated to the full court. The taking of a vote was request-

ed. Thereafter, a majority of the judges of the court in

regular active service did not vote in favor of the petitions.

Upon consideration of the foregoing, it is

ORDERED that the petitions be denied.

Per Curiam

FOR THE COURT:

Mark J. Langer, Clerk

Circuit Judge Garland did not participate in this matter.

A statement of Circuit Judge Tatel, joined by Chief Judge

Edwards and Circuit Judge Rogers, dissenting from the

denial of rehearing en banc is attached.

Tatel, Circuit Judge, joined by Edwards, Chief Judge, and

Rogers, Circuit Judge, dissenting from the denial of rehear-

ing en banc: "A facial challenge ... is, of course, the most

difficult challenge to mount successfully, since the challenger

must establish that no set of circumstances exists under

which the Act would be valid." United States v. Salerno, 481

U.S. 739, 745 (1987). The same principle governs facial

challenges to regulations. See INS v. Nat'l Ctr. for Immi-

grants' Rights, Inc., 502 U.S. 183, 188 (1991). In this case,

the panel found that Option B could not be applied without

harming white males and therefore declared it facially uncon-

stitutional. Because in so ruling the panel departed from

basic principles of judicial restraint--going beyond the rec-

ord, speculating about how the Commission will enforce the

rule and how broadcasters might react, and refusing to defer

to the Commission's reasonable interpretation of its own

rule--I respectfully dissent from the denial of the three

suggestions for rehearing en banc. See also FCC Pet. for

Reh'g & Suggestion for Reh'g En Banc at 3 ("The limited

scope of our rehearing petition ... should not be misread as

reflecting the Commission's agreement with the Court's con-

clusion that Option B pressures broadcasters to recruit wom-

en and minorities in violation of the equal protection compo-

nent of the Fifth Amendment. The Commission disagrees

with the Court's conclusions in that regard and would wel-

come grant of rehearing on the Court's equal protection

analysis.").

I agree with the panel that Adarand "requires strict scruti-

ny only of governmental actions that lead to people being

treated unequally on the basis of their race." MD/DC/DE

Broadcasters Ass'n v. FCC, 236 F.3d 13, 20 (D.C. Cir. 2001).

But I do not agree that, on its face, Option B--which is

entirely optional--triggers strict scrutiny. Contrary to the

panel opinion, Option B merely requires outreach to the

entire community, and broadcasters can accomplish such out-

reach without reducing their recruitment of white males.

"We require," the Commission said of the entire rule, that

broadcasters "reach out in recruiting new employees beyond

the confines of their circle of business and social contacts to

all sectors of their communities." Review of the Commis-

sion's Broadcast Equal Employment Opportunity Rules and

Policies, 15 F.C.C.R. 2329, p 3 (2000) ("R&O"). Broadcasters

choosing Option B may "design their own outreach program

to suit their needs, as long as they can demonstrate that their

program is inclusive, i.e., that it widely disseminates job

vacancies through the local community." Id. at p 104. The

Commission explained further:

[W]e believe that the objective of ensuring that minority

and female applicants have the opportunity to apply for

positions ... may be achieved without a specific require-

ment that broadcasters in every situation use recruit-

ment methods that specifically target those groups. Out-

reach that is truly broad and inclusive will necessarily

reach minorities and females.

Id. at p 77. Moreover, Option B requires submission of racial

data only to enable "evaluat[ion of] whether the program is

effective in reaching the entire community." Id. at p 104.

Although "few or no" minority or female applicants "may be

one indication ... that the station's outreach efforts are not

reaching the entire community," id. at p 120, the Commission

emphasized that having few or no female or minority appli-

cants would not be dispositive in its analysis of the adequacy

of a broadcaster's recruitment program:

[T]here is no requirement that the composition of appli-

cant pools be proportionate to the composition of the

local workforce.... We may ultimately determine that

outreach efforts are reasonably designed to reach the

entire community, even if few females or minorities

actually apply for openings. Conversely, the fact that a

sizeable number of females or minorities have applied for

openings will not necessarily establish the inclusiveness

of the station's efforts. Also, we recognize that an

employer cannot control who applies for jobs.

Id.

Broadcasters electing Option B could thus satisfy their

obligation simply by undertaking broad, non-racially-targeted

recruiting. For example, advertising in a local newspaper

read by both minorities and nonminorities could reach "the

entire community." Id. No record evidence suggests that

such advertising would reduce the number of white males

receiving job information. Indeed, broad outreach might

reach more white males.

Because there exist "circumstances ... under which"

broadcasters can comply with Option B with no adverse effect

on white males, the broadcasters' facial challenge should have

failed. See Salerno, 481 U.S. at 745. The panel should have

dismissed their petition, leaving them free to bring an as-

applied challenge when and if the Commission applies the

rule in a discriminatory manner. Instead, misinterpreting

Option B and engaging in its own fact-finding, the panel

found that Option B would inevitably curtail recruitment of

white males, and so subjected it to strict scrutiny.

To avoid the fact that broadcasters could totally ignore

Option B, the panel said "the Commission does not argue that

Option B creates no pressure to recruit women and minorities

because a licensee could always elect Option A." 236 F.3d at

20 n.*. In its Report and Order, however, the Commission

stated precisely that:

[W]e note that the alternative recruitment program is

completely optional; any employer who prefers not to

collect data concerning the race, ethnicity or gender of

its applicants can comply with [Option A's requirements],

none of which requires the collection of such data. No

broadcaster or cable entity has cause to complain about a

program with which it is not required to comply.

R&O at p 224. True, the Commission did not make this

argument to the panel, but given that the broadcasters chal-

lenged the constitutionality of Option A as well as B, it is

understandable that the Commission never argued that Op-

tion B is not coercive because of the presence of Option A.

Although the Commission could have so argued in the alter-

native, the fact that it didn't still does not justify ignoring the

Rule's plain language.

To avoid the fact that nothing on the face of Option B

requires that "people be[ ] treated unequally on the basis of

their race," MD/DC/DE Broadcasters, 236 F.3d at 20, the

panel found that Option B "pressure[s]" broadcasters to

"focus their recruiting efforts upon women and minorities, at

least until those groups generate a safe proportion of the

licensee's job applications." Id. at 19-20. According to the

panel, this will occur because the Commission, having "life

and death power" over broadcasters and "a long history of

employing[ ] 'a variety of sub silentio pressures and "raised

eyebrow" regulation,' " id. at 19 (quoting Cmty.-Serv. Broad.

of Mid-Am., Inc. v. FCC, 593 F.2d 1102, 1116 (D.C. Cir.

1978)), "promises to investigate any licensee that reports 'few

or no' applications from women or minorities." Id.; see also

Supplemental Op. at 2 n.*. Licensees, the panel found,

"reasonably might (and prudently would) conclude" that the

Commission's "focus upon the race and sex of applicants

belies its statement ... that its only goal is that licensees

recruit with a 'broad outreach.' " MD/DC/DE Broadcasters,

236 F.3d at 19. The panel concluded that the Commission "is

interested in results, not process, and is determined to get

them." Id.

The panel's analysis finds no support in the record. The

Commission never "promise[d]" to investigate licensees that

report few or no applications from women or minorities. The

only record reference to the Commission's investigative prior-

ities is its statement that: "[E]ach year we will randomly

select for audit approximately five percent of all licensees....

We may also conduct an inquiry if the Commission has

evidence of a possible violation of the EEO Rule." R&O at

p 145 (emphasis added). Moreover, the Commission made

clear that, in evaluating a broadcaster's outreach program, it

would not view as dispositive the number of women and

minorities in the broadcaster's applicant pool. See supra at

2-3 (quoting R&O at p 120). Because broadcasters could

thus accomplish broad outreach without race-targeted recruit-

ing, speculation that some broadcasters, imagining pressure

from the Commission or misreading the agency's intentions,

might go beyond what Option B requires is no reason to

declare it facially unconstitutional. Finally, the panel had no

basis for suspecting the Commission's intentions. Not only

do the phrases "sub silentio pressures" and " 'raised eyebrow'

regulation" describe Commission behavior occurring over two

decades ago, see supra at 4, but nothing in the record of this

case indicates that such behavior continues today or that the

Commission's goal is anything other than what it declares it

to be: broad outreach.

It is possible, as the panel suggested with its own hypothet-

ical, that some broadcasters might redirect recruiting efforts

so that "prospective nonminority applicants who would have

learned of job opportunities but for the Commission's di-

rective now will be deprived of an opportunity to compete

simply because of their race." 236 F.3d at 21. Yet Option B

does not require this result, nor does record evidence support

the panel's assumption that nonminorities will inevitably re-

ceive less job information. Even assuming, as the panel

speculated, that recruiting budgets are "fixed in the short

run," id. at 20 & n.**, there is no reason to believe that

broadcasters would not reallocate recruiting expenditures

without depriving nonminorities of job information. Nor does

record evidence support the panel's assumption that "even if

an employer increases its recruiting budget," it will necessari-

ly use those additional funds for recruiting that is "targeted

at minorities." Id. at 20 n.**. In fact, the Commission

expressly declined to require targeted recruiting. See supra

at 2 (quoting R&O at p 77). Of course, community-wide

outreach could mean that white males would face job competi-

tion from women and minorities, but not even the panel

suggested that this would trigger strict scrutiny.

Determining whether an outreach program crosses the line

from expanding opportunities for minorities to disadvantaging

nonminorities, thus triggering strict scrutiny--and if so

whether the program survives--are difficult issues that nei-

ther we nor the Supreme Court has yet considered. We

should be especially careful to resolve these important ques-

tions on a fully developed record, not on the basis of appellate

fact-finding or broadcaster paranoia.

* * *

The panel's decision that Option B is not severable also

warrants en banc review. See FCC Pet. for Reh'g & Sugges-

tion for Reh'g En Banc. The decision conflicts with circuit

precedent and, like the panel's resolution of the equal protec-

tion issue, rests on the panel's rejection of the Commission's

reasonable interpretation of its own Rule.

Agency intent has always been the touchstone of our

inquiry into whether an invalid portion of a regulation is

severable. See, e.g., Davis County Solid Waste Mgmt. v.

EPA, 108 F.3d 1454, 1459 (D.C. Cir. 1997); North Carolina v.

FERC, 730 F.2d 790, 795-96 (D.C. Cir. 1984). In this case,

the panel acknowledged that "the Commission clearly intends

that the regulation be treated as severable." 236 F.3d at 22

(citing the Commission's statement that "[i]t is our intention

... that, if any provision of the rules ... [is] held to be

unlawful, the remaining portions of the rules not deemed

unlawful ... shall remain in effect to the fullest extent

permitted by law," R&O at p 232). But relying on K Mart

Corp. v. Cartier, Inc., 486 U.S. 281, 294 (1988), the panel

undertook an additional inquiry, asking "whether the remain-

der of the regulation could function sensibly without the

stricken provision." 236 F.3d at 22. Answering no, the panel

invalidated the entire Rule. According to the panel, "[t]he

core of the rule, by Commission design, is to provide broad-

casters with two alternatives," id., a goal unattainable by

Option A alone.

K Mart concerned a different question than the one pre-

sented here. There, the question was whether a statute's

function would be impaired if, after invalidating a portion of

an implementing regulation, the Court left the rest of the

regulation in place. 486 U.S. at 294. Here, the question is

whether the Commission's Rule can function without Option

B. As in the case of any agency interpretation of its own

regulation, this is an issue on which we owe the Commission's

views special deference. See Trinity Broad. of Fla., Inc. v.

FCC, 211 F.3d 618, 625 (D.C. Cir. 2000) ("[W]e accord [the

Commission's] interpretation of its own regulations a high

level of deference, accepting it unless it is plainly wrong.")

(internal citation omitted).

Regardless of whether the panel may have had cause to

doubt whether Option A alone could have accomplished the

Commission's goals, such doubt no longer exists. In its

petition for rehearing, the Commission makes it unmistakably

clear not only that it "intended Option B to be severable from

the remainder of the rule," see FCC Pet. for Reh'g &

Suggestion for Reh'g En Banc at 10, but also that Option A

alone can accomplish the agency's "core" goal of ensuring

broad outreach. Id. at 13. When agencies clarify their

intentions regarding severability through petitions for rehear-

ing, we normally correct our opinion and reinstate the valid

portions of the regulation. See Virginia v. EPA, 116 F.3d

499, 500-01 (D.C. Cir. 1997) (reinstating part of a rule in

response to EPA's petition for rehearing explaining that the

part was severable from sections invalidated in the original

panel decision); Davis County Solid Waste Mgmt., 108 F.3d

at 1455-56, 1459-60 (same). In this case, however, the panel

summarily rejects the Commission's clarification, attributing

it to "counsel's" position. See Supplemental Op. at 4-5

("counsel for the Commission argues ... "; "Commission

counsel unequivocally states ... "; "counsel's claim"). To the

extent the panel is implying that the petition does not reflect

the Commission's views and is thus unworthy of deference,

that notion is flatly inconsistent with decisions of the Supreme

Court and the law of this circuit. In Auer v. Robbins, 519

U.S. 452 (1997), the Supreme Court held that unless a court

has "reason to suspect" that an interpretation of a regulation

set forth in an agency brief does "not reflect the agency's fair

and considered judgment," the agency's interpretation de-

serves deference. Id. at 462; see also Bigelow v. Dep't of

Def., 217 F.3d 875, 876, 878 (D.C. Cir. 2000) (deferring to an

agency interpretation of a regulation set forth for the first

time in a brief signed only by a United States Attorney). In

this case, we have no basis for suspecting that the rehearing

petition does not "reflect the [Commission's] fair and consid-

ered judgment." The filing is signed by the Commission's

"Acting General Counsel," the Justice Department has told us

that it "defer[s] to the FCC on the importance of the sever-

ability issue," Resp. to Pets. for Reh'g at 7 (emphasis added),

and Commissioner Gloria Tristani, in a press release issued

the day the petition was filed, referred to the action of the

"Commission." Press Release, Commissioner Gloria Tristani,

Re: MD/DC/DE Broadcasters Ass'n v. FCC Pet. for Reh'g

(Mar. 2, 2001) ("Today, the FCC petitioned the D.C. Circuit

Court for a partial rehearing of its January 16, 2001, opinion

invalidating our EEO outreach rules for broadcasters. While

I support the submission as far as it goes, I am disappointed

the Commission declined to seek review of the entire deci-

sion.") (emphasis added).

In addition, the panel has no reason for finding the Com-

mission's position "implausible." Supplemental Op. at 5. Al-

though the panel points to a few paragraphs in the Report

and Order suggesting that Option A by itself might provide

less flexibility than Options A and B together, there is enough

flexibility in Option A alone to demonstrate that the Commis-

sion's statement that it would have promulgated Option A by

itself is not "plainly wrong." Trinity Broad., 211 F.3d at 625.

The thirteen program choices within Option A, the Commis-

sion explained, avoided "inflexible requirements" and "en-

able[d] broadcasters to select the approaches that they be-

lieve will be most effective in their situations." R&O at p 100.

The Commission, moreover, emphasized that Option A would

independently meet its outreach goals. See id. at p 113.

According to the Commission, it reluctantly included Option B

in response to broadcasters' urging: "We are willing to allow

broadcasters to forego the supplemental recruitment mea-

sures [of Option A] and to design their own outreach program

to suit their needs, as long as they can demonstrate that their

program is inclusive, i.e., that it widely disseminates job

vacancies throughout the local community." Id. at p 104

(emphasis added). As the Commission argues, the "core of

the rule" is Option A. See FCC Pet. for Reh'g & Suggestion

for Reh'g En Banc at 13.

There is, in other words, no "substantial doubt" that the

Commission would have adopted Option A "on its own." See

Davis County Solid Waste Mgmt., 108 F.3d at 1459. In

reaching a different conclusion, the panel improperly substi-

tuted its own views for the Commission's.