Appendix — Minority Media & Telecommunications Council v. MD/DC/DE Broadcasters Ass'n
Supreme Court brief2002
Ask Donna
What actually matters in this document.
Text
) rieeD
U1. 639 OC 17 2001
No.
IN THE
Supreme Court of the United States
OCTOBER TERM, 2001
MINORITY MEDIA AND TELECOMMUNICATIONS
COUNCIL ET AL.,
Petitioners,
Vv.
MD/DC/DE BROADCASTERS ASSOCIATION ET AL.,
Respondents.
On Petition for a Writ of Certiorari to the
United States Court of Ap
for the District of Columbia Circuit
APPENDIX TO
PETITION FOR A WRIT OF CERTIORARI
Davip Honic
FREDERICK C. SCHAFRICK
Minority Mepis & Tuomas J. MixuLa
TELECOMMUNICATIONS Counsel of Record
CouncIL ApaM M. Cuup
3636 16” Street #B-366 SHEA & GARDNER
Washington, D.C. 20010 1800 Massachusetts Ave., N.W.
(202) 332-0500
Washington, D.C. 20036
(202) 828-2000
ANGELA J. CAMPBELL
Amy S. WOLVERTON
ELLiot M. MINCBERG
INSTITUTE FOR PUBLIC LAWRENCE S. OTTINGER
REPRESENTATION PEOPLE FOR THE AMERICAN
GEORGETOWN UNIVERSITY Way FOounDATION
Law CENTER 2000 M. Street, N.W.
600 New Jersey Ave., N.W. Washington, D.C. 20036
Washington, D.C. 20001 (202) 467-4999
(202) 662-9535
October 17, 2001 Counsel for Petitioners
[Additional counsel inside cover]
LENS LEELA LILO TLL EDT OTE DINE EEE SETI E A EAELES TP eset tet
cy
i —+—
i i a ret a EE
Additional Counsel:
MARTHA F. DAVIS
NATIONAL ORGANIZATION
FOR WOMEN
LEGAL DEFENSE AND
EDUCATION FUND
399 Hudson Street
New York, NY 10014
(212) 925-6635
—
TABLE OF CONTENTS
Be PT TTPO TC eT CET TT Tene
Court of Appeals Panel Opinion
Pg TPT Tee eT Teer ee
Court of Appeals Order Denying
Rehearing and Opinion Dissenting From
Denial of Rehearing En Banc
PPE. u:0 6 0% Sev bceeccaasecéesvens
47 C.F.R. § 2080
ROE Sh see ahcscecerwessusveses
Relevant Portions of Review of the
Commission’s Broadcast and Cable
Equal Employment Opportunity Rules
and Policies and Termination of the EEO
Streamlining Proceeding, Report and
Order, MM Docket Nos. 96-16, 98-204,
15 F.C.C. Red. 2329
Relevant Provisions of the Cable
Communications Policy Act of 1984,
Pub L. No. 98-549, 98 Stat. (1984)
Relevant Provisions of the Cable
Television Consumer Protection and
Competition Act of 1992, Pub L. No.
102-385, 106 Stat. 1460 (1992)
47 U.S.C. § 554
la
APPENDIX A
UNITED STATES COURT OF APPEALS FOR THE
DISTRICT OF COLUMBIA CIRCUIT
No. 00-1094, Consolidated with 00-1198
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.
September 29, 2000, Argued
January 16, 2001, Decided
On Petitions for Review of an Order of the Federal
Communications Commission.
Barry H. Gottfried argued the cause for petitioners State
Broadcasters Associations. With him on the briefs were Richard
R. Zaragoza and Kathryn R. Schmeltzer. David D. Oxenford,
Jr. entered an appearance.
2a
Shelby D. Green argued the cause and filed the briefs for
petitioner Office of Communication, Inc., United Church of
Christ.
Christopher J. Wright, General Counsel, Federal
Communications Commission, argued the cause for
respondents. With him on the brief were Daniel M. Armstrong,
Associate General Counsel, C. Grey Pash, Jr., Counsel, Bill L.
Lee, Assistant Attorney General, U.S. Department of Justice,
and Lisa W. Edwards, Attorney.
David Earl Honig, Elliot M. Mincberg, Frederick C.
Schafrick and Thomas J. Mikula were on the brief for
intervenors Minority Media and Telecommunications Council,
et al.
Angela J. Campbell was on the brief for intervenor National
Organization for Women, et al.
Tom W. Davidson, Daniel L. Brenner, Neal M. Goldberg,
Michael S. Schooler, David L. Nicoll, Dominique T. Bravo,
Richard B. Nettler and Charles A. Hunnicutt were on the brief
for amici curiae Radio One, Inc. et al. Thomas P. Powers and
Anthony T. Pierce entered appearances.
Julie Nepveu and Theodore C. Whitehouse were on the brief
for amici curiae The Leadership Conference on Civil Rights
and National Council of the Churches of Christ. Andrew J.
Schwartzman entered an appearance.
Christopher M. Curran and Eduardo Pena were on the brief
for amicus curiae Congressional Black Caucus.
Before: GINSBURG, SENTELLE and HENDERSON,
Circuit Judges. Opinion for the Court filed by Circuit Judge
GINSBURG.
GINSBURG, Circuit Judge:
3a
Fifty state broadcasters associations (Broadcasters) petition
for review of an Equal Employment Opportunity (EEO) rule
promulgated by the Federal Communications Commission. The
Broadcasters argue that the rule violates: (1) the Administrative
Procedure Act by creating an arbitrary and capricious reporting
burden; and (2) the equal protection component of the Due
Process Clause of the Fifth Amendment to the Constitution of
the United States by granting preferences to women and
minorities. The United Church of Christ (UCC) petitions for
review of the same EEO rule, arguing that it violates the APA
because, without giving a reasoned explanation, the agency
changed its policy of requiring broadcasters to recruit women
and minorities.
We hold first that the Broadcasters fail to substantiate their
claim that the rule is arbitrary and capricious. We further hold
that the rule does put official pressure upon broadcasters to
recruit minority candidates, thus creating a race-based
classification that is not narrowly tailored to support a
_ compelling governmental interest and is_ therefore
unconstitutional. Because we find that the unconstitutional
portion of the rule is not severable, we vacate the rule in its
entirety and dismiss the petition of the UCC as moot.
I. Background
The Federal Communications Commission draws its
authority to issue EEO_rules from the Communications Act of
1934, 47 U.S.C. § 151 et seq., which authorizes the
Commission, in considering whether to grant a license or
renewal to a broadcast station, to determine "whether the public
interest, convenience, and necessity will be served by the
granting of such application." Jd. at § 309(a). In 1969 the
Commission determined that it would not serve the public
interest to grant licenses to broadcasters with discriminatory
hiring practices. The Commission therefore prohibited licensees
from discriminating in employment on the basis of race or sex
da
and required them to establish EEO programs. See Petition for
Rulemaking to Require Broadcast Licensees to Show
station licensees." 47 U.S.C. § 334(a)(1).
The regulations then in effect required all broadcast
licensees -- both radio and television stations -- not only to
refrain from invidious discrimination but also to "establish,
maintain, and carry out a Positive continuing program of
specific practices designed to ensure equal opportunity and
applicants for employment, to track the source of each referral,
and to record the race and sex of each applicant and of each
person hired. If these data indicated that a Station employed a
lower percentage of women and minorities than were employed
in the local workforce, then the Commission would take that
into account in determining whether to renew the station's
license.
In Lutheran Church-Missouri Synod v. FCC, 141 F.3d 344
(D.C. Cir. 1998), we held that the Commission's EEO rule was
an unconstitutional race-based classification. (The question
whether the mle was an unconstitutional sex-based
classification was not before the court.) We held first that the
that attains, or at least approaches, proportional [racial]
representation” and "obliged stations to grant some degree of
preference to minorities in hiring." Jd. at 352-53. We further
held that the Commission's sole rationale for its rule, promoting
"diversity of Frogramming," was not a compelling
Sa
governmental justification; the Commission had expressly
abjured preventing employment discrimination as a goal of its
EEO regulation. /d. at 354-55. Accordingly, we remanded the
matter to the Commission to determine whether it had a
compelling governmental interest (such as the Justice
Department had urged as an amicus curiae, in preventing
discrimination) to support its regulation of employment
practices in the broadcast industry. Jd. at 356.
On remand, the Commission suspended the EEO rule in its
entirety and issued a Notice of Proposed Rulemaking soliciting
comments on a draft replacement rule. Review of the
Commission's Broadcast Equal Employment Opportunity Rules
and Policies, 13 FCC Red 23004 (1999). Following the
comment period the Commission concluded _ that
word-of-mouth recruiting was the single greatest barrier to
equal employment in the broadcast industry because it tends to
replicate the current composition of the workforce.
Accordingly, the Commission issued a new EEO rule requiring
licensees to achieve a "broad outreach” in their recruiting
efforts. Review of the Commission's Broadcast Equal
Employment Opportunity Rules and Policies, 15 FCC Rcd
2329, P 3 (2000) (R&O). To this end, the new EEO rule states
that a licensee must make a good faith effort to disseminate
widely any information about job openings and, in order to
"afford[ ] broadcasters flexibility in designing their EEO
programs," the rule allows them to select either of two options
entailing "supplemental measures" for accomplishing that goal.
R&O at ¥ 78. Under Option A the licensee (if it has more than
ten employees) must undertake four approved recruitment
initiatives in each two-year period; qualifying initiatives are
specified by the Commission in some detail, as can be seen
6a
from the list reproduced in the margin.” A licensee that selects
Option A need not report the race and sex of job applicants.
(i) Participation in at least four job fairs ...;
(ii) Hosting of at least one job fair;
(iii) Co-sponsoring at least one job fair with organizations .. whose
membership includes substantial participation of women and minorities;
(iv) Participation in at least four évents sponsored by organizations
representing groups ... interested in broadcast employment ...;
(v) Establishment of an internship program designed to assist members
of the community to acquire skills needed for broadcast employment;
(vi) Participation in job banks, internet Programs, and other programs
designed to promote outreach generally ...;
(vii) Participation in scholarship programs designed to assist students
interested in pursuing a career in broadcastin g;
(ix) Establishment of a mentoring program for station personnel;
(x) Participation in at least four events or Programs sponsored by
educational institutions relating to career Opportunities in broadcasting:
(xi) Sponsorship of at least two events ... designed to inform and educate
members of the public as to employment opportunities in broadcasting;
(xiii) Participation in other activities ly calculated to further
the goal of disseminating information as to employment opportunities in
Ta
Under Option B the licensee may design its own outreach
program but must report the race and sex of each job applicant
and the source by which the applicant was referred to the
station. See 47 C.F.R. § 73.2080(d).
In addition, the new EEO rule reinstates the requirement that
each licensee file an Annual Employment Report. See 47 C.F.R.
§ 73.2080(i). That report, the filing of which the Commission
had suspended following the decision in Lutheran Church,
requires the station to identify each employee by race and sex.
The Commission stated that it would use the data from the
Annual Employment Reports only to monitor industry trends
_and not (as it had under the prior EEO rule) to screen renewal
applications or to assess a licensee's compliance with its EEO
obligations. R&O at FJ 6, 225-226.
The United Church of Christ filed a petition to review the
new EEO rule in the Second Circuit. The Broadcasters filed a
petition for review in this court. The Second Circuit transferred
the UCC's petition here and the two cases were consolidated.
II. Analysis
The Broadcasters argue that the new EEO rule favors women
and minorities and, in so doing, is arbitrary and capricious as
well as unconstitutional. The UCC argues that the new rule is
arbitrary and capricious because the Commission departed,
without explanation, from its prior policy of requiring
broadcasters to recruit women and minorities.
A. The Broadcasters’ statutory claim
The Broadcasters argue the new rule is arbitrary and
capricious for two reasons, neither of which is persuasive. The
Broadcasters first attack the Commission's claim, in the
preamble to the new rule, that the rule will promote
"programming diversity,” R&O at J 4; they point out that this
court questioned the legitimacy of such a goal in Lutheran
Church. See 141 F.3d at 354 ("We doubt ... that the
Constitution permits the government to take account of racially
based differences [in tastes or opinions], much less encourage
them"). On review, however, the Commission acknowledges
the constitutional cloud over “programming diversity" as a
justification for making race a consideration in employment and
states that its primary and assertedly sufficient goal in issuing
the EEO rule was to prevent invidious discrimination. The
preamble to the rule supports the Commission's point. See R&O
at ] 4 (noting that nondiscrimination goals "would be sufficient
in themselves to warrant" the rule). The Broadcasters’ attack on
the rule as an effort to promote diversity in programming is
beside the point, therefore.
The Broadcasters next contend that the new EEO rule
arbitrarily and capriciously increases the "regulatory burden" on
stations: Under the old rule "broadcasters filed only nine reports
in each eight year license term, while the [new regulations]
require broadcast licensees to prepare and file twenty-one
reports during a license term." The Broadcasters also argue that
the Commission acted arbitrarily and capriciously in
eliminating the exemption from filing for stations in areas
where minorities are a small percentage of the workforce. In
response, the Commission states first that despite the increased
number of reports, the time and effort required to complete
them has decreased. In their reply the Broadcasters do not
disagree and we take the Commission's point as conceded.
Second, the Commission reasonably explains that it eliminated
the filing exemption in areas with a low percentage of minority
group members in the workforce because it no longer takes
enforcement action against broadcasters that indicate in their
Annual Reports that they have a "low" percentage of minority
employees. The Commission's explanation is reasonable; hence
the Broadcasters have not shown that the new rule creates an
arbitrary and capricious regulatory burden.
9a
B. The Broadcasters’ constitutional challenge
The Broadcasters argue next that the new EEO rule puts
official pressure on them to favor minorities in the hiring
process. This pressure, they claim, violates the Fifth
Amendment because it employs a race-based classification that
does not withstand strict scrutiny.
1. Does the rule require recruitment or hiring of women and
minorities?
The Broadcasters argue that the new EEO rule requires them
to recruit and to hire women and minorities. Because we
conclude that the rule does create pressure to recruit women and
minorities, which pressure ultimately does not withstand
constitutional review, we do not reach the question whether the
rule creates pressure to hire those women and minorities who
are recruited.
For purposes of their constitutional challenge, the
Broadcasters focus upon application of the EEO rule to
minorities. The Broadcasters argue that both Option A and
Option B of the new rule pressure them to recruit minorities. In
fact, however, only Option B actually seems to create such
pressure. Under Option A, a licensee is not required to report
the race or sex of job applicants or interviewees. Instead, the
licensee selects from a list of 13 types of recruitment measures,
only two of which pay special attention to women and
minorities. (Those two measures provide that a licensee may
"co-sponsor{ ] at least one job fair with," or list "each
upper-level category opening in a job bank or newsletter of,"
organizations "whose membership includes substantial
participation of women and minorities." 47 C.F.R. §
73.2080(c)(2)(iii) and (xii)). Because, as the Commission points
out, licensees remain free under Option A to select recruitment
measures that do not place a special emphasis upon the
presence of women and minorities in the target audience, we do
10a
not believe the Broadcasters are meaningfully pressured under
Option A to recruit women and minorities.
that it is more inclusive." R&O at { 104. In determining
whether recruitment efforts have reached the "entire
community," the Commission considers the number of women
and minorities in the applicant pool. If a licensee reports "few
or no" women and minorities in its applicant pool, then the
Commission will investigate the broadcaster's recruitment
efforts. Id. at ¥ 120.
A regulatory agency may be able to put pressure upon a
regulated firm in a number of ways, some more subtle than
others. The Commission in particular has a long history of
employing:
a variety of sub silentio pressures and "raised eyebrow"
regulation of program content .... The practice of forwarding
viewer or listener complaints to the broadcaster with a
request for a formal response to the FCC, the prominent
speech or statement by a Commissioner or Executive
Official, the issuance of notices of inquiry ... all serve as
means for communicating official pressures to the licensee.
Community-Service Broadcasting of Mid-America, Inc. v. FCC,
192 U.S. App. D.C. 448, 593 F.2d 1102, 1116 (D.C. Cir. 1978)
(en banc); cf. Writers Guild of America v. FCC, 609 F.2d 355,
lla
365-66 (9th Cir. 1979) (noting that "the line between
permissible regulatory activity and impermissible ‘raised
eyebrow’ harassment of vulnerable licensees is ... exceedingly
vague").
Under Option B the Commission promises to investigate any
licensee that reports "few or no" applications from women or
minorities. Investigation by the licensing authority is a powerful
threat, almost guaranteed to induce the desired conduct. See
Chamber of Commerce v. Department of Labor, 335 U.S. App.
D.C. 370, 174 F.3d 206, 210 (D.C. Cir. 1999) (noting that
agency "is intentionally using the leverage it has by virtue
solely of its power to inspect. The Directive is therefore the
practical equivalent of a rule that obliges an employer to
comply or to suffer the consequences; the voluntary form of the
rule is but a veil for the threat it obscures"); see also BARRY
COLE & MAL OETTINGER, RELUCTANT REGULATORS 213 (1978)
(investigatory hearing before FCC "is considered by both key
staff people and most commissioners almost as drastic as taking
a license away").
Indeed, the Commission's focus upon the race and sex of
applicants belies its statement -- or so a licensee reasonably
might (and prudently would) conclude -- that its only goal is
that licensees recruit with a "broad outreach." See Lutheran
Church, 141 F.3d at 353. Were that the Commission's only
goal, then it would scrutinize the licensee's outreach efforts, not
the job applications those efforts generate. Measuring outputs
to determine whether readily measurable inputs were used is
more than self-evidently illogical; it is evidence that the agency
with life and death power over the licensee is interested in
results, not process, and is determined to get them. As a
consequence, the threat of being investigated creates an even
more powerful incentive for licensees to focus their recruiting
12a
efforts upon women and minorities, at least until those groups
generate a safe proportion of the licensee's job applications.”
2. The level of scrutiny
In Adarand Constructors, Inc. v. Pena, the Supreme Court
held that "any person, of whatever race, has the right to demand
that any governmental actor subject to the Constitution justify
any racial classification subjecting that person to unequal
treatment under the strictest judicial scrutiny.” 515 U.S. 200,
224, 115 S. Ct. 2097, 132 L. Ed. 2d 158 (1995). The question
before the court today, therefore, is whether a government
mandate for recruitment targeted at minorities constitutes a
“racial classification" that subjects persons of different races to
"unequal treatment." We expressly reserved this question in
Lutheran Church-Missouri Synod v. FCC, 332 U.S. App. D.C.
165, 154 F.3d 487, 492 (1998), denying reh'g in Lutheran
Church, 141 ¥3d 344 ("Whether the government can
encourage -- "* €ven require -- an outreach program specifically
targeted on nuitorities is, of course, a question we need not
decide").
Among our sister circuits only one has heretofore considered
the level of constitutional scrutin y applicable to affirmative
13a
outreach, and even that decision has since been vacated. See
Allen v. Alabama State Board of Education, 164 F.3d 1347
(1 1th Cir. 1999), vacated by 216 F.3d 1263 (11th Cir. 2000); cf
Safeco Ins. Co. of America v. City of White House, 191 F.3d
675, 692 (6th Cir. 1999) ("Outreach efforts may or may not
require strict scrutiny"). In Allen the Eleventh Circuit held that
"where the government does not exclude persons from benefits
based on race, but chooses to undertake outreach efforts to
persons of one race broadening the pool of applicants, but
disadvantaging no one, strict scrutiny is generally inapplicable."
Id. at 1352; see also Sussman v. Tanoue, 39 F. Supp. 2d 13, 27
(D.D.C. 1999) (noting that program "does not create
preferences in hiring based on race or gender, and therefore
need not be examined under strict scrutiny"). In a footnote, the
Eleventh Circuit observed that there is some suggestion in
Adarand "that all race-based actions, whether or not they lead
to unequal treatment, are subject to strict scrutiny. See Adarand,
515 U.S. at 227. Courts, however, have not accepted this broad
reading of Adarand.” 164 F.3d at 1352 n.2 (citing Lutheran
Church, Raso v. Lago, 135 F.3d 11, 16 (1st Cir. 1998);
Monterey Mechanical Co. v. Wilson, 125 F.3d 702, 711 (9th
Cir. 1997)).
We may assume, with the Eleventh Circuit, that Adarand
requires strict scrutiny only of governmental actions that lead
to people being treated unequally on the basis of their race. We
nonetheless disagree with that court's (short-lived) conclusion
that preferential recruiting "disadvantages no one." 164 F.3d at
1352.
Under Option B the Commission has compelled broadcasters
to redirect their necessarily finite recruiting resources so as to
generate a larger percentage of applications from minority
l4a
candidates.""" As a result, some Prospective non-minority
applicants who would have learned of job opportunities but for
the Commission's directive now will be deprived of an
opportunity to compete simply because of their race. While the
Commission's intentions are to benefit minorities rather than to
disadvantage non-minorities, Adarand Clearly holds that the
standard of constitutional review does not turn upon the race of
those benefitted by a particular government action. See
Adarand, 515 U.S. at 224.
The Commission has designed a rule under which
non-minorities are less likely to receive notification of job
openings solely because of their race; that the most qualified
applicant from among those recruited wil] presumably get the
job does not mean that people are being treated equally--that is,
without regard to their race--in the qualifying round. The new
rule is therefore subject to strict scrutiny for compliance with
the constitutional requirement that all citizens receive equal
protection under the law.
3. Does the rule survive strict scrutiny?
“" Recruiting expenditures are fixed in the short run; even if an employer
increases its recruiting budget in response to the Commission's EEO rule,
allocate those funds. Here, the purpose of the rule is to raise the percentage
of women and minorities in the applicant pool and, thereby, increase their
chances of being hired. See, €.g., R&O at { 164 ("an increase in the number
of women and minorities employed would indicate that our EEO
requirements are effective in ensuring outreach"). If an employer believed
that it could reach the maximum number of good prospects with a display
15a
For a government action to withstand strict scrutiny it must
"serve a compelling governmental interest, and must be
narrowly tailored to further that interest." Adarand, 515 U.S. at
235. The Broadcasters fault the new EEO regulations in both
respects.
The matter of a compelling governmental interest is
somewhat vexed. Echoing their earlier claim that the new rule
is arbitrary and capricious because the Commission lacks a
proper goal, the Broadcasters again focus primarily upon the
Commission's secondary goal of promoting "programming
diversity,” which we rejected in Lutheran Church. With respect
to the Commission's primary motivation, the Broadcasters offer
only the conclusory assertion that "deterring imaginable future
discrimination is not a compelling governmental interest.” The
Government responds by asserting that it has a compelling
interest both in remedying the effects of past discrimination and
in preventing future discrimination in the distribution of public
benefits. See, e.g., Roberts v. United States Jaycees, 468 U.S.
609, 628, 82 L. Ed. 2d 462, 104 S. Ct. 3244 (1984). But the
Government's remedial interest is compelling only with respect
to "identified discrimination,” see Shaw v. Hunt, 517 U.S. 899,
909, 135 L. Ed. 2d 207, 116 S. Ct. 1894 (1996), and it is far
from clear that future employment in the broadcast industry is
a public benefit for which the Government is constitutionally
responsible. Cf. Burton v. Wilmington Parking Authority, 365
U.S. 715, 724, 6 L. Ed. 2d 45, 81 S. Ct. 856 (1961) (holding
that racial discrimination by private restaurant located in public
parking garage "indicates that degree of state participation and
involvement which it was the design of the Fourteenth
Amendment to condemn”).
We need not resolve the issue of a compelling governmental
interest in preventing discrimination, however, because the
Broadcasters arguc convincingly that the new EEO nule is not
narrowly tailored to further that interest. First, Option B places
l6a
pressure upon each broadcaster to recruit minorities without a
in the past or reasonably could be expected to do so in the
future. Quite apart from the question of a compelling
governmental interest, such a sweeping requirement is the
antithesis of rule narrowly tailored to meet a real problem. Cf,
e.g., City of Richmond v. J.A. Croson Co., 488 U.S. 469, 508,
102 L. Ed. 2d 854, 109 S. Ct. 706 (1989) (noting that City's
"interest in avoiding the bureaucratic effort necessary to tailor
remedial relief ... cannot justify a rigid line drawn on the basis
of a suspect classification").
The requirement in Option B that licensees report the race of
each applicant is another departure from the norm of narrow
tailoring and a corollary, no doubt, of the Commission's true
interest in results rather than mere outreach. The race of each
job applicant is relevant to the prevention of discrimination
only if the Commission assumes that minority groups will
respond to non-discriminatory recruitment efforts in some
predetermined ratio, such as in proportion to their percentage
representation in the local workforce. Any such assumption
stands in direct opposition to the guarantee of equal protection,
however. See Lutheran Church, 141 F.3d at 352 (noting that
Commission's claim that its goal of proportional representation
was equivalent to goal of nondiscrimination “presupposes that
iscrimi treatment typically will result in
Proportional representation in a station's workforce. The
Commission provides no support for this dubious proposition");
Metro Broadcasting, Inc. v. FCC, 497 U.S. 547, 602, 111 L.
Ed. 2d 445, 110 S. Ct. 2997 (1990) (O'Connor, J., dissenting)
("At the heart of the Constitution's guarantee of equal
protection lies the simple command that the Government must
treat citizens as individuals, not as simply components of a
racial, religious, sexual, or national class"). The racial data
required by Option B simply are not probative on the question
of a licensee's efforts to achieve "broad outreach,” much less
17a
narrowly tailored to further the Commission's stated goal of
non-discrimination in the broadcast industry. Because Option
B of the new EEO rule is not narrowly tailored, it does not
withstand strict scrutiny, and we hold that it violates the equal
protection component of the Due Process Clause of the Fifth
Amendment.
4. Severability
In light of our holding that Option B is unconstitutional with
respect to minorities, we must address the Commission's
request that we sever the unconstitutional aspects and leave the
rest of the new EEO rule in place. Whether the offending
portion of a regulation is severable depends upon the intent of
the agency and upon whether the remainder of the regulation
could function sensibly without the stricken provision. K-Mart
Corp. v. Cartier, Inc., 486 U.S. 281, 294, 100 L. Ed. 2d 313,
108 S. Ct. 1811 (1988). Here, the Commission clearly intends
that the regulation be treated as severable, to the extent
possible, for it said so in adopting the regulation. R&O at J 232.
The question for the court, then, is whether the balance of the
rule can function independently if shorn of its unconstitutional
aspects.
The core of the rule, by Commission design, is to provide
broadcasters with two alternatives. As the Commission
explained in the report adopting the rule, its goal is to "ensure
broad outreach while affording broadcasters flexibility in
designing their EEO programs” and, to this end, the rule
obligates broadcasters to "comply with one of ... two outreach
options.” R&O at 4 78. The Commission understandably,
therefore, did not consider the loss of flexibility that eliminating
the “alternative recruitment program” in Option B would entail.
Presumably, however, the Commission would not have created
Option B if it believed that Option A by itself was sufficient to
achieve the Commission's goals. In any event, the court cannot
18a
by severing one alternative make the other mandatory; to do so
would undercut the whole structure of the rule.
Nor can the court simply cut out all references to
“minorities” in the regulation, thereby leaving the regulation
intact with respect to women. True, a classification imposing
unequal treatment based upon sex is subject to intermediate
rather than to strict scrutiny, see United States v. Virginia, 518
U.S. 515, 533, 135 L. Ed. 2d 735, 116 S. Ct. 2264 (1996)
(classification based upon sex must serve "important
government objectives" and must be "substantially related to
the achievement of those objectives"), and therefore might
survive where the same regulation fails with respect to
minorities. Nothing in the rule, however, indicates that the
Commission would or sensibly could grant a greater preference
to white women than to minority men. On the contrary, when
we held in Lutheran Church that the Commission's prior EEO
rule was unconstitutional with respect to minorities, the
Commission suspended the rule with respect to women as well,
rather than allow even an interim period in which women but
not minorities got preferential treatment. Thereafter the
Commission issued the new rule, again treating women and
minorities alike. At every turn, therefore, we see the
Commission treating women and minorities identically.
In these circumstances, it is clear that severing all references
to minorities would severely distort the Commission's program
and produce a rule strikingly different from any the
Commission has ever considered or promulgated in the lengthy
course of these proceedings. Accordingly, we hold that the
unconstitutional provisions of the rule cannot be severed and
the entire rule must be vacated.
ITI. Conclusion
For the reasons stated in the opinion, the Broadcasters’
petition for review is granted and the rule is vacated in its
19a
entirety. In view of the foregoing, the petition of the UCC is
denied as moot.
So ordered.
20a
APPENDIX B
UNITED STATES COURT OF APPEALS FOR THE
DISTRICT OF COLUMBIA CIRCUIT
No. 00-1094, Consolidated with 00-1198
MD/DC/DE BROADCASTERS ASSOCIATION, ET AL.,
PETITIONERS
Vv.
FEDERAL COMMUNICATIONS COMMISSION AND
UNITED STATES OF AMERICA,
RESPONDENTS.
MINORITY MEDIA AND TELECOMMUNICATIONS
COUNCIL, ET AL.,
INTERVENORS.
Filed June 19, 2001
On Petitions for Rehearing.
Before: GINSBURG, SENTELLE and HENDERSON,
Circuit Judges.
Opinion for the court filed by Circuit Judge GINSBURG.
GINSBURG, Circuit Judge:
2la
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 Commission's EEO rule after
holding that only that aspect of the challenged rule was
unconstitutional. The NOW seeks rehearing 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, 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 Commission
' 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 repeatedly 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 Peles and Policies, 15 FCC Red
2329, { 120 (2000) (R&O). On remand, of couw, tie Commission is free
to revise its EEO rule to make broad outreach rather than the race and sex
of applicants the measure of compliance.
22a
acknowledges that severance is proper in a case where, as here,
the agency has "stated its intent that an unconstitutional portion
of a regulation be severed," only "when such intent is rational,
i.€., .. . when 'the remainder of the regulation could function
sensibly without the stricken provision.’ " FCC Pet. for
Rehearing at | (quoting MD/DC/DE Broadcasters, 236 F.3d at
22); see also K-Mart Corp. v. Cartier, Inc., 486 U.S. 281, 294,
100 L. Ed. 2d 313, 108 S. Ct. 1811 (1988).? In this case, the
court recognized that in the rulemaking proceeding the
Commission had expressed 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, J 232, 2000 WL 124381
(2000) (R&O) ("If any provision 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 10-1]
(emphasis supplied). That, however, is not quite so.
The Commission had two goals in adopting its EEO rule: It
sought to "ensure broad outreach in recruitment while affording
broadcasters flexibility in designing their EEO programs."
R&O at ¥ 78. In paragraph 113 of the Report and Order, in
which the Commission now claims that it "clearly stated” that
. The dissent questions the pane!'s interpretation of K-Mart and produces
a passel of arguments. We address here all the arguments raised in the
23a
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 al! qualified job
candidates 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 J 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
Reconsideration Order, 15 FCC Red 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
24a
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 constitutes
Official action." Yet counsel points to no order taking the view
espoused in the petition for rehearing. Furthermore, 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
explained:
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
25a
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 J 126; see also id. at J 104.
Throughout the Report and Order, the Commission
repeatedly 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 J 88 (permitting broadcasters to engage in joint
recruiting and noting "there is considerable value in allowing
individual broadcasters flexibility"); id. at | 95 (rejecting
proposal to send notice of openings to all potential sources of
job applicants); id. at | 97 (granting broadcasters flexibility in
selecting form of notice); id. at ¢ 110 (expressing desire to
"minimize burdens on broadcasters, especially smaller
broadcasters"); id. at § 121 (same); id. at J 126 (rejecting
proposal for relief in light of flexibility afforded to
broadcasters, and emphasizing role of Option B to this end); id.
at § 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 repromulgate
Option A as a new rule, simply cause the Commission expense
* 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.
26a
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 analysis in the course of
rulemaking, would not hav: 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 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
rehearing is
Denied.
BEFORE: EDWARDS, Chief Judge, WILLIAMS,
GINSBURG, SENTELLE, HENDERSON, RANDOLPH,
ROGERS, TATEL, and GARLAND, Circuit Judges.
ORDER
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 requested.
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.
27a
Circuit Judge GARLAND did not participate in this matter.
A statement of Circuit Judge TATEL, joined by Chief Judge
HARRY T. EDWARDS and Circuit Judge ROGERS,
dissenting from the denial of rehearing en banc is attached.
TATEL Circuit Judge, joined by HARRY T. EDWARDS,
Chief Judge, and ROGERS, Circuit Judge, dissenting from the
denial of rehearing 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, 95 L. Ed. 2d 697, 107 S. Ct. 2095 (1987). The same
principle governs facial challenges to regulations. See INS v.
Nat'l Ctr. for Immigrants’ Rights, Inc., 502 U.S. 183, 188, 116
L. Ed. 2d 546, 112 S. Ct. 551 (1991). In this case, the panel
found that Option B could not be applied without harming
white males and therefore declared it fac‘ally unconstitutional.
Because in so ruling the panel departed from basic principles of
judicial restraint -- going beyond the record, 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 conclusion that
Option B pressures broadcasters to recruit women and
minorities in violation of the equal protection component of the
Fifth Amendment. The Commission disagrees with the Court's
conclusions in that regard and would welcome grant of
rehearing on the Court's equal protection analysis.").
28a
I agree with the panel that Adarand "requires strict scrutiny
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 outreach 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 Commission's
Broadcast Equal Employment Opportunity Rules and Policies,
15 FCC Red 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.” Jd. at J 104. The Commission explained
further:
We believe that the objective of ensuring that minority
and female applicants have the opportunity to apply for
positions . . . may be achieved without a specific
requirement that broadcasters in every situation use
recruitment methods that specifically target those groups.
Outreach that is truly broad and inclusive will necessarily
reach minorities and females.
Id. at J 77. Moreover, Option B requires submission of racial
data only to enable "evaluation of whether the program is
effective in reaching the entire community." Jd. at J 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 J 120, the Commission
emphasized that having few or no female or minority applicants
29a
would not be dispositive in its analysis of the adequacy of a
broadcaster's recruitment program:
There is no requirement that the composition of applicant
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." Jd. 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
30a
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:
We 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 J 224. True, the Commission did not make this
argument to the panel, but given that the broadcasters
challenged the constitutionality of Option A as well as B, it is
understandable that the Commission never argued that Option
B is not coercive because of the presence of Option A.
Although the Commission could have so argued in the
alternative, 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 "pressures" 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." Jd. 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, 192
U.S. App. D.C. 448, 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,
3la
"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." Jd.
The panel's analysis finds no support in the record. The
Commission never "promised" to investigate licensees that
report few or no applications from women or minorities. The
only record reference to the Commission's investigative
priorities is its statement that: "Each 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 J
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 | 120). Because broadcasters could thus accomplish broad
outreach without race-targeted recruiting, 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
hypothetical, that some broadcasters might redirect recruiting
efforts so that "prospective nonminority applicants who would
have learned of job opportunities but for the Commission's
32a
directive 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
receive 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 necessarily 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 J
77). Of course, community-wide outreach could mean that
white males would face job competition 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 neither we nor
the Supreme Court has yet considered. We should be especially
careful to resolve these important questions 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 & Suggestion
for Reh'g En Banc. The decision conflicts with circuit precedent
and, like the panel's resolution of the equal protection issue,
rests on the panel's rejection of the Commission's reasonable
interpretation of its own Rule.
Se
33a
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, 323 U.S. App.
D.C. 425, 108 F.3d 1454, 1459 (D.C. Cir. 1997); North
Carolina v. FERC, 235 U.S. App. D.C. 28, 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 "it 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 232). But relying on
K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 294, 100 L. Ed. 2d
313, 108 S. Ct. 1811 (1988), the panel undertook an additional
inquiry, asking "whether the remainder 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, "the core of the rule, by Commission
design, is to provide broadcasters with two alternatives,” id, a
goal unattainable by Option A alone.
K Mart concerned a different question than the one presented
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, 341 U.S. App. D.C. 191,
211 F.3d 618, 625 (D.C. Cir. 2000) ("We accord the
Commission's interpretation of its own regulations a high level
of deference, accepting it unless it is plainly wrong.") (internal
Citation omitted).
34a
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 rehearing, we normally correct
our opinion and reinstate the valid portions of the regulation.
See Virginia v. EPA, 325 U.S. App. D.C. 155, 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, 137 L. Ed. 2d 79, 117 S. Ct. 905 (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 deserves deference. /d. at 462; see also
Bigelow v. Dep't of Def., 342 U.S. App. D.C. 369, 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
35a
"reflect the Commission's fair and considered judgment." The
filing is signed by the Commission's "Acting General Counsel,"
the Justice Department has told us that it "defers to the FCC on
the importance of the severability 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, | am disappointed the Commission declined to seek
review of the entire decision.") (emphasis added).
In addition, the panel has no reason for finding the
Commission's position "implausible." Supplemental Op. at 5.
Although 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
Commission'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
Commission explained, avoided "inflexible requirements" and
"enabled broadcasters to select the approaches that they believe
will be most effective in their situations." R&O at J 100. The
Commission, moreover, emphasized that Option A would
independently meet its outreach goals. See id at § 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 measures
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.” Jd. at § 104 (emphasis
36a
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 substituted its own
views for the Commission's.
37a
APPENDIX C
47 C.F.R. § 2080
(a) General EEO Policy. Equal opportunity in employment shall
be afforded by all licensees or permittees of commercially or
noncommercially operated AM, FM, TV, Class A TV, or
international broadcast stations (as defined in this part) to all
qualified persons, and no person shall be discriminated against
in employment by such stations because of race, color, religion,
national origin, or sex. Religious radio broadcasters may -
establish religious belief or affiliation as a job qualification for
all station employees. However, they cannot discriminate on the
basis of race, color, national origin or gender from among those
who share their religious affiliation or belief. For purposes of
this rule, a religious broadcaster is a licensee which is, or is
closely affiliated with, a church, synagogue, or other religious
entity, including a subsidiary of such an entity.
(b) General EEO program requirements. Each broadcast station
shall establish, maintain, and carry out a positive continuing
program of specific practices designed to ensure equal
opportunity and nondiscrimination in every aspect of station
employment policy and practice. Under the terms of its
program, a station shall:
(1) Define the responsibility of each level of management to
ensure vigorous enforcement of its policy of equal opportunity,
and establish a procedure to review and control managerial and
supervisory performance;
(2) Inform its employees and recognized employee
organizations of the equal employment opportunity policy and
program and enlist their cooperation;
(3) Communicate its equal employment opportunity policy
and program and its employment needs to sources of qualified
applicants without regard to race, color, religion, national
eT
38a
origin, or sex, and solicit their recruitment assistance on a
continuing basis;
(4) Conduct a continuing program to exclude all unlawful
forms of prejudice or discrimination based upon race, color,
religion, national origin, or sex from its personnel policies and
practices and working conditions; and :
ati cent
(5) Conduct a continuing review of job structure and
employment practices and adopt positive recruitment, job
design, and other measures needed to ensure genuine equality
of opportunity to participate fully in all organizational units,
occupations, and levels of responsibility.
(c) Specific EEO program requirements. Under the terms of its
program, a station employment unit must:
(1) Recruit for every job vacancy in its operation. A job
filled by an internal promotion is not considered a vacancy for :
which recruitment is necessary. Religious radio broadcasters :
who establish religious affiliation as a qualification for a job
position are not required to comply with these recruitment
requirements with respect to that job position or positions, but
will be expected to make reasonable, good faith efforts to
recruit applicants who are qualified based on their religious
affiliation. Nothing in this section shall be interpreted to require
a broadcaster to grant preferential treatment to any individual or
group based on race, color, national origin, religion, or gender.
(i) A station employment unit shall use recruitment
sources for each vacancy sufficient in its reasonable, good faith
judgment to widely disseminate information concerning the
vacancy. -
(ii) In addition to such recruitment sources, a station
employment unit shall provide notification of each vacancy to
any organization that distributes information about employment
opportunities to job seekers or refers job seekers to employers,
39a
upon request by such organization. To be entitled to notice of
vacancies, the requesting organization must provide the station
employment unit with its name, mailing address, e-mail address
(if applicable), telephone number, and contact person, and
identify the category or categories of vacancies of which it
requests notice. (An organization may request notice of all
vacancies).
(2) Engage in at least four (if the station employment unit
has more than ten full-time employees) or two (if it has five to
ten full-time employees) of the following initiatives during each
two-year period preceding the filing of a Statement of
Compliance pursuant to subsection (g) hereof:
(i) Participation in at least four job fairs by station
personnel who have substantial responsibility in the making of
hiring decisions;
(ii) Hosting of at least one job fair;
(iii) Co-sponsoring at least one job fair with
organizations in the business and professional community
whose membership includes substantial participation of women
and minorities;
(iv) Participation in at least four events sponsored by
organizations representing groups present in the community
interested in broadcast employment issues, including
conventions, career days, workshops, and similar activities;
(v) Establishment of an internship program designed to
assist members of the community to acquire skills needed for
broadcast employment;
(vi) Participation in job banks, internet programs, and
other programs designed to promote outreach generally (i.e.,
that are not primarily directed to providing notification of
specific job vacancies);
40a
(vii) Participation in scholarship programs designed to
assist students interested in pursuing a career in broadcasting;
(viii) Establishment of training programs designed to
enable station personnel to acquire skills that could qualify
them for higher level positions;
(ix) Establishment of a mentoring program for station
personnel; 3
(x) Participation in at least four events or programs
sponsored by educational institutions relating to career
opportunities in broadcasting;
(xi) Sponsorship of at least two events in the community
designed to inform and educate members of the public as to
employment opportunities in broadcasting;
(xii) Listing of each upper-level category opening in a
job bank or newsletter of media trade groups whose
membership includes substantial participation of women and
minorities;
(xiii) Participation in other activities designed by the
station employment unit reasonably calculated to further the
goal of disseminating information as to employment
opportunities in broadcasting to job candidates who might
otherwise be unaware of such opportunities.
(3) Analyze its recruitment program on an ongoing basis to
ensure that it is effective in achieving broad outreach to
potential applicants, and address any problems found as a result
of its analysis.
(4) Periodically analyze measures taken to:
(i) Disseminate the station's equal employment
opportunity program to job applicants and employees;
4la
(ii) Review seniority practices to ensure that such
practices are nondiscriminatory;
(iii) Examine rates of pay and fringe benefits for
employees having the same duties, and eliminate any inequities
based upon race, national origin, color, religion, or sex
discrimination;
(iv) Utilize media for recruitment purposes in a manner
that will contain no indication, either explicit or implicit, of a
preference for one race, national origin, color, religion or sex
over another; :
(v) Ensure that promotions to positions of greater
responsibility are made in a nondiscriminatory manner;
(vi) Where union agreements exist, cooperate with the
union or unions in the development of programs to assure all
persons equal opportunity for employment, irrespective of race,
national origin, color, religion, or sex, and include an effective
nondiscrimination clause in new or renegotiated union
agreements; and
(vii) Avoid the use of selection techniques or tests that
have the effect of discriminating against any person based on
race, national origin, color, religion, or sex.
(5) Retain records to document that it has satisfied the
requirements of paragraphs (c) (1) and (2) of this section. Such
records, which may be maintained in an electronic format, shall
be retained until after grant of the renewal application for the
term during which the vacancy was filled or the initiative
occurred. Such records need not be submitted to the FCC unless
specifically requested. The following records shall be
maintained:
(i) Listings of all full-time job vacancies filled by the
station employment unit, identified by job title;
eT
\
42a
(ii) For each such vacancy, the recruitment sources
utilized to fill the vacancy (including, if applicable,
organizations entitled to notification pursuant to paragraph
(c)(1)(ii) of this section, which should be separately identified),
identified by name, address, contact person and telephone
number; :
(iii) Dated copies of all advertisements, bulletins, letters,
faxes, e-mails, or other communications announcing vacancies;
(iv) Documentation necessary to demonstrate
performance of the initiatives required by paragraph (c)(2) of
this section, if applicable, including sufficient information to
fully disclose the nature of the initiative and the scope of the
station's participation, including the station personnel involved;
(v) The total number of interviewees for each vacancy
and the referral-source for each interviewee; and
(vi) The date each vacancy was filled and the recruitment
source that referred the hiree.
(6) Annually, on the anniversary of the date a station is due
to file its renewal application, the station shall place in its
public file, maintained pursuant to Sec. 73.3526 or Sec.
73.3527, and on its web site, if it has one, an EEO public file
report containing the following information:
(i) A list of all full-time vacancies filled by the station's
employment unit during the preceding year, identified by job |
title;
(ii) For each such vacancy, the recruitment source(s)
utilized to fill the vacancy (including, if applicable,
organizations entitled to notification pursuant to paragraph
(c)(1 (ii) of this section, which should be separately identified),
identified by name, address, contact person and telephone
number;
43a
(iii) The recruitment source that referred the hiree for
each full-time vacancy during the preceding year;
(iv) Data reflecting the total number of persons
interviewed for full-time vacancies during the preceding year
and the total number of interviewees referred by each
recruitment source utilized in connection with such vacancies;
and
(v) A list and brief description of initiatives undertaken
pursuant to paragraph (c)(2) of this section during the preceding
year, if applicable.
(7) Stations shall substantially comply with paragraph
(c)(1)(i) of this section in connection with hires for part-time
positions. The provisions of paragraph (c) are not otherwise
applicable to hires for part-time positions.
(d) Alternative recruitment requirements. A station employment
unit may elect not to utilize the provisions of paragraph
(c)(1){ii) (notification to community groups) and (c)(2) (menu
options) of this section, provided that it complies with the
following requirements:
(1) The station employment unit shall maintain records as
required by paragraph (c)(5)(i) through (iii) of this section and
shall maintain, in lieu of the records required by paragraph
(c)(5)iv) through (vi) of this section, data reflecting the
recruitment source, gender, and racial and/or ethnic status of
applicants for each full-time job vacancy filled by the station
employment unit;
(2) The station employment unit shall include in the annual
EEO public file report required by paragraph (c)(6) of this
section the information specified in paragraph (c)(6)(i) and (ii)
and, in lieu of the information required by paragraph (c)(6)(ii1)
through (v), data reflecting, for each recruitment source utilized
for any full-time vacancy during the preceding year, the total
44a
number of applicants generated by that source, the number of
applicants who were female, and the number of applicants who
were minority, identified by the applicable racial and/or ethnic
group with which each applicant is associated.
(3) Station employment units electing to proceed under this
paragraph shall otherwise comply with the requirements
specified in paragraph (c) of this section.
(e) Election procedures. Within forty-five days of the effective
date of this section, each station employment unit shall elect
whether it wishes to utilize the recruitment procedures specified
in paragraph (c) of this section or the alternate recruitment
procedures specified in paragraph (d) of this section and shall
file with the Commission a statement indicating the election
which shall also be placed in the station(s) public inspection file
maintained pursuant to Sec. 73.3526 or Sec. 73.3527. An
applicant for a new station or for the transfer or assignment of
an existing license filed on FCC Form 314 or 315 shall state its
election on FCC Form 396-A submitted with the application. A
station employment unit may change its election every two
years at the time of the filing of the Statement of Compliance
referenced in paragraph (i)(1) of this section, or at the time of
the filing of its renewal application. If the station employment
unit wishes to change its election, it shall so state in its
Statement of Compliance or FCC Form 396 accompanying the
renewal application.
(f) Mid-term review for broadcast stations. The Commission
will conduct a mid-term review of the employment practices of
each broadcast television station and each radio station that is
part of an employment unit of more than ten full-time
employees four years following the station's most recent license
expiration date as specified in Sec. 73.1020. Each such licensee
is required to file with the Commission the station's EEO public
file report, as described in paragraphs (c)(6) or (d)(2) of this
section, along with the relevant Statement of Compliance (Form
45a
397), as described in paragraph (i)(1) of this ction, four
months before the date specified in the previous sentence. The
EEO public file report should cover the station's activities
during the 12-month period prior to its submission.
(g) Small station exemption. The provisions of paragraphs (b),
(c), (d), (e), and (f) of this section shall not apply to station
employment units that have fewer than five full-time
employees.
(h) Definitions. For the purposes of this section:
(1) A full-time employee is a permanent employee whose
regular work schedule is 30 hours per week or more. A
part-time employee is a permanent employee whose regular
work schedule is less than 30 hours per week.
(2) A station employment unit is a station or a group of
commonly owned stations in the same market that share at least
one employee.
(i) Enforcement. The following provisions apply to employment
activity concerning full-time positions at each broadcast station
employment unit (defined in this part) employing five or more
persons in full-time positions, except where noted.
(1) Each broadcast station shall file with the Commission a
Statement of Compliance (FCC Form 397) stating whether the
station has complied with the outreach provisions of this section
during the two-year period prior to the date the station files the
Statement. Before filing the Statement, stations shall review
their recruitment activity during the two-year period along with
requirements of this section and determine whether they have
been in compliance with of this section during the relevant
period. The Statement of Compliance shall also report any
change in the station's recruitment election pursuant to
paragraph (e) of this section. All broadcast stations, including
those that are part of an employment unit with fewer than five
46a
full-time employees, shall file a Broadcast Equal Employment
Opportunity Program Report (Form 396) with their renewal
application. As with Form 397, stations shall indicate on Form
396 whether they have complied with of this section. In
addition, stations shall provide a narrative statement
demonstrating how their recruitment efforts achieved broad and
inclusive outreach during the two years prior to filing the Form
396. Stations should also include in Form 396 any change in
recruitment election pursuant to paragraph (e) of this section. If
the station believes it was not or may not have been in
compliance, it shall submit an appropriate explanation on Form
396 or 397, as applicable. The Statement of Compliance (Form
397) is filed every second, fourth and sixth year of the license
term, on the anniversary of the date the station is due to file its
application for renewal of license. Form 396 is filed on the date
the station is due to file its application for renewal of license. If
a broadcast licensee acquires a station pursuant to FCC Form
314 or FCC Form 315 during the period that is to form the basis
for the Statement of Compliance or Form 396, its Statement
should be based on the licensee's EEO recruitment activity
during the period starting with the date it acquired the station.
Stations are required to maintain a copy of their Statement of
Compliance and Form 396 in the station's public file in
accordance with the provisions of Secs. 73.3526 and 73.3527.
(2) On the date a station is due to file for renewal of license,
as part of Form 396, it shall file with the Commission an EEO
public file report concerning recruitment activity during the
12-month period preceding the filing date. The required
contents of the public file report are described in paragraphs
(c)(6) or (d)(2) of this section. On the date each television
station or radio station which is part of an employment unit
with more than ten full-time employees files its Statement of
Compliance (Form 397) at the mid-term point of its license
term, the station shall file, together with Form 397, an EEO
public file report concerning recruitment activity during the
47a
12-month period prior to filing the EEO public file report. If
any broadcast licensee acquires a station pursuant to FCC Form
314 or FCC Form 315 during the twelve months covered by the
EEO public file report, its EEO public file report shall cover the
period starting with the date it acquired the station.
(3) If a station is subject to a time brokerage agreement, the
licensee shall file Statements of Compliance, Forms 396, and
EEO public file reports concerning only its own recruitment
activity. If a licensee is a broker of another station or stations,
the licensee-broker shall include its recruitment activity for the
brokered station(s) in determining the bases of the Statements
of Compliance, Forms 396 and the EEO public file reports for
its own station. If a licensee-broker owns more than one station,
it shall include its recruitment activity for the brokered station
in the Statements of Compliance, Forms 396, and EEO public
file reports filed for its own station that is most closely
affiliated with, and in the same market as, the brokered station.
If a licensee-broker does not own a station in the same market
as the brokered station, then it shall include its recruitment
activity for the brokered station in the Statements of
Compliance, Forms 396, and EEO public file reports filed for
its own station that is geographically closest to the brokered
station.
(4) Broadcast stations subject to this section shall maintain
records of their recruitment activity necessary to demonstrate
that they are in compliance with this section. Stations shall
ensure that they maintain records sufficient to verify the
accuracy of information provided in Statements of Compliance,
Forms 396, and EEO public file reports. To determine
compliance with this section, the Commission may conduct
inquiries of licensees at random or if it has evidence of a
possible violation of this section. In addition, the Commission
will conduct random audits. Specifically, each year
approximately five percent of all licensees in the television and
48a
radio services will be randomly selected for audit, ensuring that,
even though the number of radio licensees is significantly larger
than television licensees, both services are represented in the
audit process. Upon request, stations shall make records
available to the Commission for its review.
(5) The public may file complaints throughout the license
term based on a station's Statement of Compliance or the
contents of a station's public file. Provisions concerning filing,
- withdrawing, or non-filing of informal objections or petitions
to deny license renewal, assignment, or transfer applications are
delineated in Secs. 73.3584 and 73.3587-73.3589.
(j) Sanctions and remedies. The Commission may issue
appropriate sanctions and remedies for any violation of this
section. :
49a
APPENDIX D
Relevant Provisions of Review of the Commission’s
Broadcast and Cable Equal Employment Opportunity
Rules and Policies and Termination of the EEO
Streamlining Proceeding,’ Report and Order, MM Docket
Nos. 96-16, 98-204, 15 F.C.C. Red. 2329. Released February
2, 2000; Adopted January 20, 2000.
By the Commission: Chairman Kennard and Commissioners
Ness and Powell issuing separate statements; Commissioner
Tristani approving in part, dissenting in part and issuing a
statement; Commissioner Furchtgott-Roth dissenting and
issuing a statement.
I. INTRODUCTION
1. In this Report and Order, we adopt a new broadcast equal
employment opportunity ("EEO") Rule and policies”, consistent
with the D.C. Circuit's decision in Lutheran Church - Missouri
' Streamlining Broadcast EEO Rule and Policies, MM Docket No, 96-16,
11 FCC Red 5154 (1996)(Streamlining).
2 The broadcast EEO Rule, 47 C.F.R. § 73.2080, covers "all licensees or
permittees of commercially or noncommercially operated AM, FM, TV, or
international broadcast stations.” In addition, pursuant to Establishment of
Rules and Policies for the Digital Audio Radio Satellite Service in the 2310-
2360 MHZ Frequency Band, 12 FCC Red 5754, 5791 (1997), Digital Audio
Radio Service by satellite is also covered by our EEO Rule. Prior to their
suspension, discussed below, several different EEO forms were required to
be filed by broadcasters, including a Broadcast Station Annual Employment
Report (Form 395-B), a Broadcast EEO Program Report (Form 396) filed
with a station's renewal application, and a Broadcast EEO Model Program
Report (Form 396-A) filed with an assignment, transfer, or construction
permit application.
50a
Synod v. FCC;? amend our EEO rules and policies applicable
to cable entities,’ including multichannel video programming
distributors ("MVPDs"),> to conform them, as much as
possible, to the broadcast EEO Rule; establish our authority to
retain the anti-discrimination provisions of our broadcast EEO
Rule; and terminate MM Docket Nos. 98-204 and 96-16,
Streamlining Broadcast EEO Rule and Policies, 13 FCC Red
6322 (1998) ("Order and Policy Statement"). The new
broadcast EEO Rule and modified EEO rules for cable entities,
adopted herein, emphasize outreach in recruitment to all
qualified job candidates and ban discrimination on the basis of
race, color, national origin or gender.
3 141 F.3d 344 (D.C. Cir. 1998), pet. for reh'g denied, 154 F.3d 487, pet.
for reh'g en banc denied, 154 F.3d 494 (D.C. Cir. 1998) ("Lutheran
Church").
4 Our cable EEO nules, 47 C.F.R. § 76.71, et. seq. ("cable EEO rules”), were
implemented pursuant to Section 634 of the Cable Communications Policy
Act of 1984, Pub. L. No. 98-549, 98 Stat. 2779 (1984), and the Cable
Television Consumer Protection and Competition Act of 1992, Pub. L. No.
102-385, 106 Stat. 1460 (1992). See also 47 C.F.R. §§ 21.920, 25.601,
74,996, 76.1702, 76.1802, and 100.51. Cable entities are required to file
Annual Employment Reports (Form 395-A for cable operators and satellite
master antenna television systems ("SMATV") and Form 395-M for
multichannel video programming distributors) and are also required to file
a Supplemental Investigation Sheet ("SIS" or "SIS form") every five years.
5 "A multichannel video programming distributor is an entity such as, but
not limited to, a cable operator, a multipoint distribution service, a
multichannel multipoint distribution service ["MMDS"], a direct broadcast
satellite service ["DBS"], a television receive-only satellite program
distributor, and a video dialtone program service provider...” 47 C.F.R. §
76.71(a). The term "cable" in this Report and Order includes multichannel
video programming distributors that control the programming that they
distribute. 47 U.S.C. § 554(h\(1); 47 C.F.R. § 76.71(a).
Sla
2. Pursuant to the Communications Act of 1934, as amended
("Communications Act"), this Commission is charged with the
responsibility of regulating "interstate and foreign
communications services so that they are available, so far as
possible, to all people of the United States, without
discrimination on the basis of race, religion, national origin, or
sex..." The Commission is also mandated to license individals
and companies to use the radio spectrum as the "public interest,
convenience, and necessity" require.’ While we have grappled
over the years with the task of giving form and content to that
statutory mandate, we have no doubt that it requires us to deny
licenses to those who would discriminate on the basis of race,
ethnicity or gender. Such persons do not have the basic
character qualifications to hold a valuable government license.
And the licenses that we grant to broadcasters are not like any
others granted by government. They afford licensees the
privilege and the power to air programming -- entertainment,
news, public affairs, educational -- that exerts a powerful
influence on our culture and shared values and helps shape and
inform public opinion on myriad issues of public importance.
We do not believe that a licensee who discriminates against
minorities or women would be able or inclined to fulfill its
responsibility as a public trustee to provide a program service
that airs diverse viewpoints, enriches public debate, and is
responsive to the needs and interests of all sectors of its
community. We can expect no less of broadcast licensees or
cable entities under the Communications Act.*
6 47 U.S.C. § 151, as amended (1997).
7 47 U.S.C. §§ 307, 309.
® See 47 U.S.C. §§ 151, 303(f), (g), (1); Turner Broadcasting System, Inc.
v. FCC, 512 U.S. 622, 663 (1994); FCC v. National Citizens Committee for
Broadcasting, 436 U.S. 775, 795-800 (1978); NAACP v. FPC, 425 U.S.
662, 670 n. 7 (1976) ("National Citizens"); Bilingual Bicultural Coalition
52a .
3. We require more of broadcasters and cable entities in this
Report and Order, however, than merely refraining from
discrimination. We require them to reach out in recruiting new
employees beyond the confines of their circle of business and
social contacts to all sectors of their communities. We believe
that repeated hiring without broad outreach may unfairly
exclude minority and women job candidates when minorities
and women are poorly represented in an employer's staff --
particularly when they are poorly represented in the ranks of
management employees who make hiring decisions. It is not
enough to say that one will not discriminate against anyone who
applies for a job when not all have been given a fair opportunity
to apply. Outreach in recruitment must be coupled with a ban
on discrimination to effectively deter discrimination and ensure
that a homogenous workforce does not simply replicate itself
through an insular recruitment and hiring process.
4. These goals would be sufficient in themselves to warrant
nondiscrimination and outreach requirements. We believe that
such requirements also serve an important, constructive
function in fostering greater diversity of viewpoints and
programming that is responsive to the interests of a diverse
community. As discussed below, we harbor no illusion that
members of any group share the same outlook or views. But we
do believe that the record in this proceeding and human
experience suggest that, if the group of people who make -
programming decisions at a broadcast station or cable system
come from a wider variety of backgrounds with a greater range
of human experience and social interactions, their programming
decisions will better reflect the diversity of viewpoints in our
pluralistic society than would programming decisions made by
a homogenous workforce. And we hope and believe that, given
on Mass Media, Inc. v. FCC, 595 U.S. 621, 628, 633-35 (D.C. Cir. 1978)
(en banc) ("Bilingual").
.
the power and pervasiveness of the electronic media in our
nation, programming that reflects the diverse views and
interests present in our society will increase our understanding
of those from different backgrounds, decrease the sense of
isolation of minority groups, and help us build bridges across
racial, ethnic and socioeconomic divides. We have no doubt
that regulations that advance these goals would "encourage the
larger and more effective use of radio in the public interest."”
Il. SUMMARY
5. The Report and Order addresses the concerns of the
Lutheran Church court regarding the Commission's authority to
promulgate an employment nondiscrimination rule. In the
Report and Order, we confirm the existence of such authority
and retain the anti-discrimination provisions of the broadcast
and cable EEO rules. The Report and Order also discusses the
statutory bases for the Commission's authority to promulgate
EEO program requirements and describes the regulatory
approach that we are adopting towards religious radio
broadcasters.
6. The Report and Order reinstates the requirement that
broadcasters file annual employment reports (Form 395-B),
which was suspended by the Commission following Lutheran
Church, and retains the requirement that cable entities file
annual employment reports (Form 395-A or 395-M).'° The
Commission will no longer use the employment profile data in
the annual employment reports in screening renewal
applications or assessing compliance with EEO program
> 47 U.S.C. § 303(g).
'© The annual employment reporting requirement for cable entities was not
suspended following Lutheran Church.
54a
requirements. The Commission will use this information only
to monitor industry employment trends and report to Congress.
7. The EEO program requirements adopted in the Report and
Order require that broadcasters and cable entities widely
disseminate information about job openings to ensure that all
qualified applicants, including minorities and women, are able
to compete for jobs in the broadcast and cable industries. The
requirements afford broadcasters and cable entities flexibility in
designing their EEO programs while, at the same time, ensuring
broad dissemination of information concerning every full-time
vacancy, as well as effective enforcement of our EEO rules and
policies. To enhance the success of their outreach, broadcasters
and cable entities are also required to implement two
supplemental recruitment measures: (i) notification of job
vacancies to any recruitment organization that requests such
notification; and (ii) a certain number of outreach efforts
beyond the traditional recruitment that occurs in response to
individual vacancies, such as job fairs, internship programs,
training programs, mentoring programs, and interaction with
educational and community groups.
8. Although all broadcasters and cable entities will be
required to widely disseminate information concerning job
openings, they may choose not to use the supplemental
recruitment measures if they believe that they can accomplish
broad outreach without them. However, a broadcaster or cable
entity who makes this election will be required to maintain
records concerning the recruitment sources, race, ethnicity and
gender of applicants so it can monitor whether its outreach
efforts have been successful in achieving broad outreach to the
community. If the data collected indicates that outreach has not
been inclusive, a broadcaster or cable entity will be expected to
adjust its outreach program accordingly. Thus, the rules we are
adopting require a broadcaster of cable entity to analyze the
55a
effectiveness of its outreach program, and address any problems
found.
9. As in the past, broadcast station employment units with
fewer than five full-time employees and cable employment
units with fewer than six full-time employees will not be
required to demonstrate compliance with the EEO program
requirements. However, all other broadcasters and cable entities
must file annually an EEO report in their public file, detailing
their outreach effort’; during the preceding year and the results
of those efforts. Broadcasters also will be required to file a
Certificate of Compliance every second, fourth and sixth year
of the license term certifying compliance with the EEO Rule.
Television stations and every radio station that is part of an
employment unit with more than ten full-time employees will
be required to file a copy of their EEO public file report
midway through the license term with the FCC. This
information will be analyzed as part of the Commission's mid-
term review of a station's EEO program. Stations will also be
required to file their EEO public file report with their renewal
application and cable entities will be required to file their EEO
public file report as part of the supplemental information
required by statute to be filed every five years.
Ill. BACKGROUND
10. The Commission, in the Notice of Proposed Rule
Making'' in this proceeding, proposed EEO outreach
requirements that would be consistent with the decision
'' 13 FCC Red 23004 (1998) (hereinafter NPRM). We note that several
comments and reply comments were late-filed in this proceeding. However,
because we believe that it is in the public interest to do so, we will consider
these comments and reply comments as part of the record of this
proceeding.
56a
rendered in Lutheran Church.’ The Court of Appeals held that
the portions of the Commission's regulations requiring licensees
to maintain an EEO program to recruit minorities were subject
to the strict scrutiny applicable to racial classifications imposed
by the federal government under Adarand Constructors, Inc. v.
Pena.'? The court further held those requirements
unconstitutional as applied to minorities.'* The court opined
that this regulatory scheme "pressures stations to maintain a
work force that mirrors the racial breakdown of their
‘metropolitan statistical area," and thus injects racial
considerations into hiring decisions. The court did not find that
a station would be held in violation of the Commission's rules
based solely on a statistical disparity between its employment
profile and the percentage of minorities in the local labor force.
However, it concluded that the requirement that stations
evaluate the success of their EEO programs based on those
statistics, in conjunction with the Commission's use of those
statistics at renewal time, compelled licensees "to hire with an
eye toward meeting the numerical target," and thus resulted i -
individuals being granted a preference because of their race.!
In addition, while the court did not question the
constitutionality of the Commission's anti-discrimination rule,
it remanded to the Commission the question of its statutory
12, See NPRM, 13 FCC Red at 23008-23011 (paras. 11-17) for further
discussion of Lutheran Church.
13 515 U.S. 200, 115 S. Ct. 2097 (1995) ("Adarand").
4 The court declined to evaluate the constitutionality of the EEO program .
requirements as applied to women, since the issue was not before it.
Lutheran Church, 141 F.3d at 351, n.9.
'S Id. at 352.
16 Id. at 354.
57a
authority to promulgate such a rule.'’ The NPRM tentatively
concluded that we have ample statutory authority to retain our
EEO anti-discrimination rule,'* and we elaborate further on this
view below.
11. On September 15, 1998, the court denied the
Commission's petition for rehearing en banc.'? In doing so, the
court issued a supplemental decision in which it indicated that
its initial decision in the case should not be read to hold that any
regulation encouraging broad outreach to, as opposed to the
actual hiring of, a particular race would necessarily trigger strict
scrutiny. The court also observed that not all race conscious
measures adopted by the government are subject to strict
scrutiny.”°
12. Against that backdrop, the Commission sought comment
on numerous proposals and issues regarding changes to its
broadcast EEO Rule and conforming changes to its cable EEO
rules. Although the Lutheran Church decision did not directly
affect cable entities, the Commission's cable EEO rules contain
some of the same provisions that the court invalidated in
Lutheran Church; therefore, to avoid possible constitutional
problems, as well as to emphasize broad and inclusive
recruitment outreach, we proposed new EEO provisions for
both broadcasters and cable entities, including MVPDs.”!
'7 Id. at 356-357.
'S NPRM, 13 FCC Red at 23014 Pied 25).
'9 Lutheran Church-Missouri Synod v. FCC, 154 F.3d 487 (1998).
» Id. at 492.
2! See 47 C.F.R. § 76.71 et seq.
58a
13. Inthe NPRM, the Commission tentatively proposed EEO
rules which removed all requirements that broadcast licensees
and cable entities compare their employment profile with the
local labor force. In addition, the Commission indicated that it
would no longer compare individual broadcast licensees’ or
cable entities’ employment profiles with the local labor force,
even as a screening device. We proposed to retain the cable and
broadcasting rules' general EEO policy/program requirements
as outlined in 47 C.F.R. §§ 76.73(b) and 73.2080(b),
respectively. Further, we proposed to retain most of the cable
and broadcasting rules’ specific EEO program requirements.”
14. The NPRM proposed several alternative recruitment
approaches with the objective of ensuring the broadest
dissemination of vacancy information. We asked generally for
comments on ways the Commission could encourage entities to
expand their pools of qualified applicants without creating any
incentives to prefer minority and female applicants over other
applicants. —
15. Further, the NPRM proposed that entities be required to
analyze their efforts to recruit, hire and promote in a
nondiscriminatory fashion and address any difficulties in
\
2 These require broadcasters and cable entities to: disseminate their equal
employment opportunity program to job applicants and employees; review
seniority practices to ensure that such practices are not discriminatory,
examine rates of pay and fringe benefits for employees and eliminate any
inequities based upon race or sex discrimination, offer promotions to
qualified minorities and women in a nondiscriminatory fashion to positions
of greater responsibility; cooperate with any labor union in the development
of programs to assure qualified minority persons or women of equal
opportunity for employment; include a nondiscrimination clause in union
agreements; and avoid the use of selection techniques or tests that have the
effect of discriminating against qualified women and minorities. NPRM, 13
FCC Red at 23039.
59a
implementing their EEO programs. We solicited comments on
how this analysis should be conducted.
16. The NPRM stimulated response from a broad range of
commenters, who raised exceptional and thought-provoking
ideas and proposals. Having reviewed the entire record in this
proceeding, we have constructed a new EEO outreach program
which we believe will accomplish our goal of ensuring broad
outreach in recruitment while avoiding the constitutional
infirmities identified by the court in Lutheran Church and
reducing recordkeeping burdens to the extent consistent with
maintaining an effective, enforceable program.
IV. DISCUSSION
A. Statutory Authority for EEO Program Requirements
and Anti-Discrimination Rules
oo denice
ee p ing Distril
17. We noted in the NPRM that the court's decision in
Lutheran Church did not address the validity of our EEO rules
for cable entities, which were not at issue in that case.” We
tentatively concluded that we have ample statutory authority
under Section 634 of the Communications Act for the continued
enforcement of the cable EEO rules.” Indeed, we noted that
Section 634 requires us to enforce EEO rules for cable entities.
Nevertheless, because certain provisions in the cable EEO rules
are similar to those provisions in the broadcast EEO Rule found
to be unconstitutional in Lutheran Church, we sought comment
3 NPRM, 13 FCC Red at 23022 (para. 46). See 47 C.F.R. §§ 76.71 et seq.
* 47 U.S.C. § $54.
60a
on whether the Commission has statutory authority to modify
those rules to avoid constitutional problems.
18. We conclude that the Commission is required by Section
634 to enforce EEO rules for the cable industry, but that we
have considerable latitude under the statute to revise the cable
EEO rules. Congress built into Section 634 flexibility for the
Commission to implement the regulatory scheme by granting
the Commission rulemaking authority rather than simply
prescribing the cable EEO requirements by statute; by stating
in Section 634(d)(2) that the "rules shall specify the terms under
which" an entity shall take the actions specified in that
section;2> and by providing in Section 634(d)(4) that the
Commission may amend the cable EEO rules "from time to
time to the extent necessary to carry out the provisions of this
section." We believe that our broad rulemaking authority under
Section 634(d)(2) and 634(d)(4) permits us to adopt new, race-
neutral, inclusive outreach requirements and to revise the
annual employment reports (Forms 395-A and 395-M) and
Supplemental Investigation Sheets ("SIS" or "SIS forms") filed
by cable entities to make them consistent with our modified
cable EEO rules. Commenters agree that Section 634 explicitly
authorizes the Commission to modify its cable EEO regulations
to advance the congressional goals identified in the statute.”*
19. Additionally, by stating in Section 634(d)(2) that the
Commission is to adopt rules implementing the requirements of
that section "to the extent possible," Congress recognized that
it may not be possible for the Commission to fully implement
all of the provisions in that section. Thus, it only obligated the
25 In contrast, Section 634(c) simply provides that cable entities "shall"
comply with five listed requirements in implementing their EEO programs.
.% Tele-Communications, Inc. (TCI) Comments at 3 (owner of cable ©
systems); Cole, Raywid and Braverman (CRB) Comments at 2-3.
6la
Commission to implement the listed requirements "to the extent
possible," consistent with other conflicting requirements or
limitations. The court's decision in Lutheran Church delineates
constitutional limitations with which we must reconcile the
cable EEO rules. We believe that Section 634(d)(2) permits the
Commission to eliminate those provisions of the cable EEO
rules that are similar to those struck down by the court in
Lutheran Church because it is not "possible" for the
Commission to enforce a provision that a court has found
unconstitutional. Accordingly, we modify the cable EEO rules
in this Report and Order to remove provisions similar to those
found unconstitutional in Lutheran Church. We also revise the
annual employment reports and SIS forms filed by cable
entities to conform them with our modified cable EEO rules.
2. Broadcasters
20. The court specifically directed us in Lutheran Church to
consider our authority to promulgate an employment
nondiscrimination rule. Further, while the court struck down the
broadcast EEO program requirements on constitutional grounds
and did not hold that we lack statutory authority to promulgate
such rules, it questioned our reliance on our public interest
mandate to foster diversity of programming as a basis for the
broadcast EEO Rule. Accordingly, we discuss here our
statutory authority to retain our anti-discrimination rule and to
adopt new EEO outreach requirements for broadcasters.
21. Based on the record in this proceeding, we have
concluded that we have ample statutory authority to retain our
EEO anti-discrimination rule and, consistent with the
constitutional standards established in Lutheran Church, to
promulgate new EEO outreach requirements. First, Congress
has explicitly authorized us to regulate the EEO practices of
television broadcasters and ratified the Commission's authority
to adopt EEO rules for radio broadcasters. Second, we have
authority to adopt rules fostering equal employment in the
62a
broadcast industry in order to further the statutory goal of
fostering minority and female ownership in the provision of
commercial spectrum-based services, reflected in Section 309(j)
of the Communications Act. Finally, equal employment of
minorities and women furthers the public interest goal of
diversity of programming, both directly and by enhancing the
prospects for minority and female ownership.
: ee |
a Set eed
22. In 1992, Congress enacted Section 334 of the
Communications Act as part of the Cable Television Consumer
Protection and Competition Act of 1992.”’ Section 634 provides
that "the Commission shall not revise:"
(1) the regulations concerning equal employment
opportunity as in effect on September 1, 1992 (47 C.F.R.
73.2080) as such regulations apply tc television broadcast
station licensees and permittees; or
(2) the forms used by such licensees and permittees to
report pertinent employment data to the Commission.”
The Conference Report accompanying this legislation indicates
that Section 634 "codifies the Commission's equal employment
opportunity rules, 47 CFR. 73.2080" for television licensees
and permittees.” Section 334 thus grants the Commission
explicit authority to regulate the EEO practices of television
broadcasters. Indeed, it requires the Commission regulate the
EEO practices of television broadcasters. Thus, as is the case
with respect to cable operators and other multichannel
27 Pub. L. No. 192-385, 106 Stat. 1460 ("1992 Cable Act").
% 47 U.S.C. § 334(a).
2 Conf. Rep. No. 862, 102d Cong., 2d Sess. 97 (1992).
63a
programming distributors, the Commission has express
statutory authority to regulate the EEO practices of television
broadcasters.
b. Cc ‘onal Ratificati
23. We noted in the NPRM that the Commission has
maintained nondiscrimination and EEO program requirements
for broadcasters for over 30 years. In 1968, the Commission
adopted a Memorandum Opinion and Order in which it
concluded that the national policy against discrimination and
the fact that broadcasters are licensed under the
Communications Act to operate in the public interest required
the Commission to consider allegations of employment
discrimination in licensing broadcast stations.*° The
Commission expressed its view that deliberate discrimination
in employment is inconsistent with a _ broadcaster's
responsibility to serve all elements of its community.*' In 1969,
the Commission adopted rules prohibiting broadcast stations
from discriminating against any person in employment on the
basis of race, color, religion, or national origin, and requiring
stations to maintain a program designed to assure equal
opportunity in every aspect of station employment.” It
reiterated its view that discriminatory employment practices are
incompatible with a station's obligation to operate in the public
interest, and relied on Sections 4(i), 303, 307, 308, 309 and 310
in adopting the new rules. Relying on its authority to license
and regulate broadcasters in the public interest, the Commission
© See Petition for Rulemaking to Require Broadcast Licensees to Show
Nondiscrimination in Their Employment Practices, 13 FCC 2d 766 (1968).
*" Id. at 770.
32 See Petition for Rulemaking to Require Broadcast Licensees to Sh. »"
Nondiscrimination in Their Employment Practices, 18 FCC 2d 240 (196!
64a
has revised and extended its rules on numerous occasions since
1969 to, inter alia, refine its EEO program requirements, require
licensees to file these programs and other statistical
employment information with the Commission, and prohibit
discrimination against, and require outreach to, women.”
24. Over the last 30 years, the Commission has vigorously
enforced its EEO requirements, sanctioning broadcast licensees
in numerous cases for failing to comply fully with those
requirements. Commission decisions enforcing- the EEO
requirements have been challenged both by licensees who have
been sanctioned for noncompliance™ and by petitioners who
believed that Commission enforcement was not vigorous
enough.” Indeed, the Court of Appeals for the D.C. Circuit held
” See, e.g.. Petition for Rulemaking to Require Broadcast Licensees to
Show Nondiscrimination in Their Employment Practices, 23 FCC 2d 430
(1970); Amendment of Part V1 of FCC Forms 301, 303, 309, 311, 314, 315,
340, and 342, and Adding the Equal Employment Program Filing
Requirement to Commission Rules 73.125, 73.301, 73.599, 73.680, and
73.793, 32 FCC 2d 708 (1971); Nondiscrimination in the Employment
Policies and Practices of Broadcast Licensees, 60 FCC 2d 226 (1976)
Employment Opportunity Commission, 70 FCC 2d 2320 (1978) (delineating
the Commission's investigative jurisdiction and methods of cooperation with
the Equal Employment Opportunity Commission ("EEOC”")].
* See e.g. San Luis Obispo Broadcasting Lid. Parmership, \3 FCC Red
1020 (1998); Valley Television, Inc., 12 FCC Red 22795 (1998); Congaree
Broadcasting, Inc., $ FCC Red 7691 (1990); South Plains Broadcasting
Company, Inc., 101 FCC 2d 1364 (1985).
See, e.g.. Davidson County Broadcasting Company, Inc., \2 FCC Red
12245 (1997); Broadcast Associates, Inc., 11 FCC Red 15479 (1996);
Buckley Broadcasting Corp., 11 FCC Red 6628 (1996); Lanser
Broadcasting Corp., \0 FCC Red 12121 (1995); Ogden Broadcasting of
South Carolina, Inc., 7 FCC Red 1895 (1992).
65a
more than 20 years ago that the Commission must investigate
broadcasters’ employment practices and, in assessing the
character qualifications of broadcast licensees. consider whether
they have engaged in intentional employment discrimination.”
And the Supreme Court observed in the seminal case addressing
the scope of an agency's authority to serve the "public interest"
that FCC regulation of the employment practices of its licensees
"can be justified as necessary to enable the FCC to satisfy its
obligation under the Communications Act of 1934 ... to ensure
that its licensees’ programming fairly reflects the tastes and
viewpoints of minority groups.”*’
25. We observed in the NPRM that during the three decades
that the Commission has administered EEO program
requirements and antidiscrimination rules, Congress has
repeatedly expressed awareness of the rules and has not only
acquiesced in them, but has also referred to them approvingly,
confirming our view that the Commission has statutory
authority to promulgate these rules. We continue to believe that
Congress has ratified the Commission's authority to adopt and
enforce EEO requirements against broadcasters under its
statutory mandate to license and regulate broadcasters in the
public interest.”
%* Bilingual, 595 F 2d at 628-29 ("In implementing its anti-discrimination
policy, the Commission of necessity must investigate broadcasters’ past
employment practices. A documented pattern of intentional discrimination
would put seriously into question a licensee's character qualification to
remain a licensee: intentional discrimination almost invariably would
disqualify a broadcaster from a position of public trusteeship.”).
” NAACP v. FPC, 425 U.S. 662, 670 n.7 (1976).
33 We note that while Congressional ratification applies equally to radio and
television broadcasters — which have been subject to the same EEO rules for
the last 30 years — it is relevant only to radio broadcasters since Congress
enacted Section 334 of the Act, which, as discussed above, expressly
66a
26. There is a substantial body of case law establishing the
principle that congressional approval and ratification of
administrative interpretations of statutory provisions, including
those granting jurisdiction to regulate, can be inferred from
congressional acquiescence ina long-standing agency policy or
practice.” The inference of ratification from congressional
acquiescence in the Commission's exercise of authority to adopt
and enforce EEO regulations is particularly strong. As noted
above, the Commission has consistently taken the position over
a very long period of time -- 30 years -- that it has authority
under its public interest mandate to adopt and enforce EEO
rules, and the obligations arising under those rules have become
a major component of broadcasters’ obligation to serve the
public interest.” Moreover, as noted above, the Commission
authorizes the Commission to regulate the EEO practices of television
broadcasters.
” See, e.g, Haig v. Agee, 453 U.S. 280, 300-06 (1981) (“Haig”) (long-
standing interpretation by the Secretary of State of its power under Passport
Act of 1926 as encompassing the power to revoke passports to prevent
damage to national security or foreign policy was ratified by congressional
acquiescence, even though Secretary exercised power infrequently);
Lorillard v. Pons, 434 U.S. 575, 580-85 (1978) ("Lorillard") (Congress is
presumed to be aware of administrative and judicial interpretations of a
statute and to adopt and ratify those interpretations when it re-enacts a
statute without change or incorporates in a new law sections of a prior law
that have a settled interpretation); Zemel v. Rusk, 381 U.S. 1, 9-13 (1965)
("Zemel”) (Secretary of State's interpretation of Passport Act of 1926 as
authorizing him to impose area restrictions was ratified by Congress when
it left untouched the Secretary's broad rulemaking authority when it later
enacted legislation relating to passports), Norwegian Nitrogen Products Co.
v. US., 288 U.S. 294, 313-15 (1933) ("administrative practice, consistent
and generally unchallenged, will not be overtumed except for very cogent
reasons if the scope of the command is indefinite and doubtfu!”).
© See e.g., 1969 Report and Order, 18 FCC 2d at 241-42; 1976 Report and
Order, 60 FCC 2d at 229; Report, 9 FCC Red at 6285-87.
67a
has enforced its regulations vigorously. These are not obscure
agency rules that could have gone unnoticed by Congress.
27. But congressional ratification of the Commission's
authority to adopt EEO rules need not be inferred solely from
congressional acquiescence in the Commission's exercise of
that authority over a period of many years. Congress has, in two
major pieces of legislation, expressly approved and ratified the
Commission's authority to regulate the EEO practices of its
broadcast licensees and other media entities as well.
28. In 1984, Congress enacted Section 634 of the
Communications Act*' as part of the Cable Communications
Policy Act of 1984.7 Although the Commission at that time
already had rules in place regulating the EEO practices of cable
operators as well as broadcasters, Section 634 was intended to
"codify and strengthen{] the Commission's existing equal
employment opportunity regulations."*’ Section 634 granted the
Commission broad authority to adopt rules banning
employment discrimination by cable operators and requiring
cable operators to “establish, maintain, and execute a positive
continuing program of specific practices designed to ensure
“" 47 U.S.C. § 554.
“ Pub. L. No. 98-549, 98 Stat. 2779 ("1984 Cable Act”).
“” HLR. Rep. No. 934, 98th Cong., 2d Sess. 86 (1984), reprinted in [1984]
U.S. Cong. News 4655. The Senate bill that was ultimately enacted, S. 66,
did not contain EEO provisions. The EEO provisions that were eventually
enacted as Section 634 originated in Section 635 of H.R. 4103, which is
explained in H.R. Report No. 934, discussed below. The Senate adopted the
explanation of H.R. 4103 contained in H.R. Report No. 934. See 130 C.R.
S.14285 (Oct. 11, 1985), reprinted in [1984] U.S. Cong. News 4738.
68a
equal opportunity in every aspect of its employment policies
and practices ....""
29. The legislative history of Section 634 makes it
unmistakably clear that Congress believed that the Commission
already possessed authority to regulate the EEO practices of
mass media entities -- broadcast as well as cable. The House
Commerce Committee Report on the bill proposing the
provisions on which Section 634 was based explicitly
confirmed the Commission's authority to adopt EEO rules. The
House Commerce Committee stated:
It is well established that the Commission has the
authority to regulate employment practices in the
communications industry. Among the Commission's
efforts in the equal employment opportunity (EEO) area
over the last several years has been the enforcement of
employment standards in the cable industry.
Section 634 endorses and extends those standards.
Because of the potentially large impact cable
programming and other services provided by the cable
industry has on the public, the employment practices of
the industry have an importance greater than that
suggested by the number of its employces. The
committee strongly believes that equal employment
requirements are particularly important in the mass
media area where employment is a critical means of
assuring that program service will be responsive to a
public consisting of a diverse array of population
groups."
“ 47 U.S.C. § $54(b), (c), (d).
* HR. Rep. No. 934, 98th Cong., 2d Sess. 84-85 (1984) (emphasis added).
69a
30. In addition to the explicit recognition of the
Commission's broad and “well established” authority to regulate
employment practices in the communications industry, the
legislative history of Section 634 shows that Congress viewed
the legislation as codifying, strengthening and building upon
the Commission's pre-existing regulatory scheme, which it
viewed as well within the Commission's statutory authority. For
example, the House Report states that the legislation “codifies
and strengthens the Commission's existing equal employment
opportunity regulations." Further, it states that the statutory
definition of the entities that are subject to the EEO
requirements “endorses the Commission's current practice of
reviewing compliance with EEO standards by cable systems
and other employment units with more than 5 employees, and
extends the applicability of EEO requirements to headquarters
operations.”*’ Similarly, it states that the provisions specifying
the requirements for Commission EEO rules “conform in large
part to the Commission's required EEO program under existing
regulations."** Clearly, Congress recognized and ratified the
Commission's broad authority to regulate the EEO practices of
mass media entities.
31. Additional evidence of congressional ratification can be
found in the Cable Television Consumer Protection and
Competition Act of 1992,” which further strengthened the cable
EEO requirements, extended those requirements to all MVPDs,
and codified the Commission's EEO program and
nondiscrimination requirements as applied to broadcast
* Id. at 86.
* Id.
* Id. at 87.
* Pub. L.. No. 192-385, 106 Stat. 1460.
70a
television licensees. In so doing, Congress confirmed the
importance of EEO rules for the electronic media generally.
Moreover, Congress once again explicitly acknowledged the
existence of the Commission's broadcast and cable EEO
requirements and proclaimed that vigorous enforcement of
those rules was necessary. Section 22(a) of the 1992 Cable Act
provides:
(1) despite the existence of regulations governing equal
employment opportunity, females and minorities are not
employed in significant numbers in positions of
management authority in the cable and broadcast
television industries,
(2) increased numbers of females and minorities in
positions of management authority in the cable and
broadcast television industries advances the Nation's
policy favoring diversity in the expression of views in the
electronic media; and
(3) rigorous enforcement of equal employment
opportunity rules and regulations is required in order to
effectively deter racial and gender discrimination.”
By extending the cable EEO requirements to every entity that
provides multiple channels of video programming, such as
MMDS operators and DBS licensees, Congress was building
upon, and filling in the gaps in, the Commission's regulatory
scheme, ensuring that every electronic mass media provider
would be subject to EEO regulations enforced by the
Commission.
32. As noted above, the 1992 Cable Act not only
strengthened and extended the cable EEO requirements, it also
* 1992 Cable Act, Section 22(a) (emphasis added). See also H.R. Rep. No.
628, 102d Cong., 2d Sess. 111-17 (1992).
eer
Tla
codified the Commission's EEO requirements for broadcast
television stations in Section 334 of the Act.*' Section 334 thus
explicitly recognizes the existence of the Commission's
broadcast EEO Rule and requires the Commission to keep its
EEO requirements in effect for television broadcasters.
33. Furthermore, Section 22(g) of the 1992 Cable Act
required the Commission to report to Congress on “the
effectiveness of [the Commission's] procedures, regulations,
policies, standards, and guidelines in promoting ihe
congressional policy favoring increased employment
opportunity for women and minorities in positions of
management authority.” The Commission was required to
include in that report "such legislative recommendations to
improve equal employment opportunity in the broadcasting and
cable industries as it deems necessary.” We do not believe that
Congress would have directed the Commission to review the
effectiveness of its broadcast and cable EEO policies and
regulations then in effect, and recommend whether further
legislative action was necessary, had Congress not believed that
those policies and regulations were within the Commission's
lawful authority. Thus, Section 22(g) is further evidence of
Congress’ affirmative approval of the Commission's authority
to adopt equal employment opportunity requirements for
broadcasters.”
34. It is within this historical context that the Commission's
statutory authority to regulate the EEO practices of broadcast
* 47 U.S.C. § 334. See also Conf. Rep. No. 862, 102d, 2d Sess 97 ( 1992).
*? We note that the Commission's EEO nules for broadcasters apply to radio
as well as television stations.
” See, ¢.g.. Bob Jones University v. United States, 461 U.S. $74 (1983)
("Bob Jones University”).
72a
licensees must be viewed. As discussed above, the Supreme
Court has inferred congressional ratification of administrative
action from “nothing more than silence in the face of an
administrative policy.”™ Here, the inference of congressional
ratification rests on far firmer ground, including explicit
statements confirming the Commission's authority to regulate
the EEO practices of media companies and legislation that
codified and expanded the reach of Commission EEO
regulations.**> Under these circumstances, the inference of
congressional ratification is inescapable.”
“ Haig, 453 U.S. at 300, citing Zeme/, 381 U.S. at 11 and other Supreme
Court cases.
> The facts here give rise to an even stronger inference of congressional!
ratification than was present in City of New York v. FCC, 486 U.S. 57
(1988), for example. In that case, cable television franchisors challenged the
Commission's authority, in adopting regulations establishing cable signal
quality technical standards, to forbid state and local authorities to impose
more stringent technical standards. In determining that the Commission
acted within its statutory authority in preempting state and loval standards,
the Supreme Court found that Congress in the Cable Act of 1984 endorsed
the Commission's longstanding policy of federal preemption of cable
technical standards, and that it was “quite significant” that there was no
evidence of any intent by Congress to “overturn the Commission's decade-
old policy without any discussion or even any suggestion that it was doing
so.” /d. at 67-68. In the case of the Commission's jurisdiction to regulate in
the EEO area, there is affirmative evidence of congressional approval of the
Commission's statutory authority.
* See, e.g., City of New York v. FCC, supra; Bob Jones University, 461 U.S.
at 601 (finding that "Congress affirmatively manifested its acquiescence” in
the IRS’ statutory interpretation that educational institutions that
discriminate on the basis of race are not eligible for an income tax
exemption when it enacted a new provision denying tax-exempt siatus to
social clubs that discriminate on the basis of race); U.S. v. Rutherford, 442
U.S. 544, 554 n.10 (1979) (“once an agency's statutory construction has
been fully brought to the attention of the public and the Congress and the
latter has not sought to alter that interpretation although it has amended the
ee ee
73a
35. Notably, despite voluminous comments filed in this
proceeding, only one commenter challenges the Commission's
position that its statutory authority to regulate the EEO
practices of broadcasters has been ratified by Congress.
Evening Post Company and Great Empire Broadcasting, Inc.
(Evening Post) argues that Congress has not ratified the
Commission's authority to regulate EEO practices of
broadcasters because: (i) Section 334 of the Communications
Act is framed in negative terms and thus limits, rather than
expands, the Commission's authority; and (ii) Section 334 of
the Communications Act was enacted by the 1992 Cable Act,
thus somehow diminishing the import of the findings in Section
22(a) of the Cable Act regarding the need for EEO regulation of
cable and broadcast television. Evening Post also asserts that "it
could be argued” that Congress’ grant to the Commission of
explicit authority to adopt rules for cable and multichannel
video program distributors indicates that it did not intend that
the Commission would have statutory authority to regulate EEO
practices in the broadcast industry.*”’
36. Evening Post's argument is belied by both the facts and
the law. As a general matter, we note first that Evening Post
fails to acknowledge congressional acquiescence in the
statute in other respects, then presumably the legislative intent has been
correctly discerned”), quoting Apex Hosiery Co. v. Leader, 310 U.S. 469,
487-89 (1940); Lorillard, 434 U.S. at 580 (where Congress adopted a new
law incorporating sections of a prior law, it can be presumed to have had
knowledge of and approved the interpretation given to the prior law); Zemel,
381 U.S. at 12 (Congress ratified Secretary of State's authority to refuse to
impose area restrictions on travel when “despite 26 years of executive
interpretation of the 1926 Act as authorizing the imposition of area
restrictions, Congress in 1952, though it once again enacted legislation
relating to passports, left completely untouched the broad rule-making
authority granted in the earlier Act.").
*” Evening Post Comments at 4-6.
74a
Commission's exercise of its jurisdiction to regulate EEO
practices of broadcasters for the past 30 years. More
specifically, though it is true that Section 334 is drafted in
negative terms, that provision requires the Commission, in
substance, to continue applying to television broadcasters the
EEO rules that were in effect when Section 334 was enacted.
Indeed, the Conference Report on the 1992 Cable Act makes it
clear that this was Congress’ intent. However drafted, we
cannot see how this provision can be viewed as anything other
than an endorsement of the Commission's authority to regulate
the EEO practices of broadcast television licensees and a
directive that it continue to do so.” Further, we fail to see how
38 See H.R. Rep. No. 862, 102d Cong., 2d Sess 97 (1992) (section 334
"codifies the Commission's equal employment opportunity rules”).
®” Smithwick and Belendiuk (S&B) argues that Section 334 forbids the
Commission from changing its EEO program requirements. See S&B
Comments at 12-15 (law firm representing over 300 broadcast stations). We
disagree. As discussed above, while Section 334 is drafted as a prohibition,
it requires in essence that the Commission continue applying to television
broadcasters the EEO Rule that was in effect on September |, 1992. Thus,
Congress clearly intended that the FCC enforce equal employment
- obligations against broadcasters. While the Commission cannot continue to
enforce those portions of the 1992 EEO Rule that were invalidated on
constitutional grounds, the Commission can most faithfully advance the
congressional intent underlying Section 334 by adopting new outreach rules
to replace those that were invalidated. Section 334 is unlike the statute at
issue in MCI] Telecommunicutions Corp. v. FCC, 765 F.2d 1186 (D.C. Cir.
1985) ("MCI"), cited by S&B. See S&B Comments at 13. In MCI, the D.C.
Circuit found that the Commission lacked authority to prohibit non-
dominant common carriers of interstate telephone service from filing tariffs.
The court found that Section 203(a) of the Communications Act explicitly
requires the filing of tariffs, and that the Commission's authority to
“modify” this requirement pursuant to another statutory provision does not
authorize it to forbid the filing of tariffs. There was no indication that
Congress intended to relieve common carriers of the tariff-filing obligation,
and there was unambiguous language requiring statutory filing, /d. at 1192.
75a
the fact that Section 334 of the Communications Act was
enacted by the 1992 Cable Act in any way diminishes the
import of the findings in Section 22(a) of the Cable Act. On the
contrary, it makes even clearer their relevance t the
Commission's authority to regulate broadcasters.
37. Evening Post's final argument -- that Congress’ explicit
grant to the Commission of authority to regulate the EEO
practices of cable entities and other MVPDs in the 1992 Act
indicates that it "did not intend for the Commission to have
statutory authority to take action on broadcast EEO matters” --
is specious and is directly contradicted by the legislative
histories of the 1984 and 1992 Cable Acts. Evening Post's
argument might have some force if the original
Communications Act of 1934 had granted the Commission
authority to regulate the EEO practices of certain specified
entities but not the EEO practices of broadcasters. One could
then argue that the omission of authority to regulate
broadcasters’ EEO practices was intentional. But Congress was
not writing on a blank slate when it granted the Commission
explicit statutory authority to regulate cable EEO practices in
1984 and expanded that authority in 1992 to include all
MVPDs. As discussed above, it Anew at that time that the
Commission had been regulating the EEO practices of
broadcast licensees since 1969 and it explicitly acknowledged
the Commission's statutory authority to do so. As the large body
Here, in contrast, Congress clearly intended that the Commission impose
equal employment opportunity obligations on broadcasters. Indeed,
Congress found the need for such requirements so compelling that it forbade
the Commission from revising its EEO rules then in effect. Moreover, in
MCI, the Commission's abandonment of its tariff requirement reflected a
shift in the Commission's previous view of the statutory tariff-filing
obligation. /d. at 1192-93. Here, the Commission has consistently, since
1969, interpreted its statutory authority as permitting the imposition of EEO
requirements on broadcasters, and Congress has acquiesced in, and ratified,
that view.
76a
of case law cited above establishes, Congress would have had
to affirmatively indicate its disapproval of the Commission's
longstanding, consistent and vigorous exercise of its authority
to regulate the EEO practices of broadcasters in order to avoid
the inference of congressional ratification. It did the opposite,
recognizing the Commission's "well-established” authority and
indicating that its intent was to endorse and strengthen the
Commission's EEO regulations. The legislative record thus
belies Evening Post's suggestion that Congress did not intend
the Commission to have statutory authority to regulate
broadcast EEO practices.
38. There is another, particularly compelling reason to find
in the current statutory context that Congress has ratified our
authority to regulate the EEO practices of broadcasters. In
resolving issues of administrative or judicial jurisdiction, the
Supreme Court has held that any interpretation of congressional
intent that will result in a "bizarre jurisdictional patchwork” is
to be disfavored absent legislative history or a persuasive
functional argument to the contrary. In this case, Congress has
explicitly granted the Commission authority to regulate the
EEO practices of television broadcasters, cable entities, and all
other MVPDs, including such relative newcomers as DBS and
MMDS operators.*' Thus, rejecting the inference of
congressional ratification would leave us in the anomalous
situation of having jurisdiction to regulate the EEO practices of
broadcast television and cable television providers and MVPDs,
but not radio broadcasters. There is no indication in the
legislative history that this was Congress’ intent. On the
contrary, Congress has indicated its belief that Commission
enforcement of EEO rules for the electronic media is essential
© Lindah! v. Office of Personnel Management, 470 U.S. 768, 799 (1985);
Crown Simpson Pulp Co. v. Costle, 445 U.S. 193, 197 (1980).
* 47U.S.C. §§ 334, 554.
77a
and, building upon the foundation established by the
Commission's broadcast EEO Rule, Congress enacted
legislation to ensure that every medium of mass communication
is subject to such rules. It would defeat that clear congressional
intent and create a "bizarre jurisdictional patchwork” for us to
hold that we lack statutory authority to enforce EEO rules
against radio stations -- the oldest and arguably the most
pervasive of the electronic media.
39. For the foregoing reasons, we find that Congress has
granted us explicit authority to regulate the EEO practices of
television licensees and has ratified our authority to regulate the
EEO practices of radio licensees. Whatever uncertainty may
have existed 30 years ago concerning whether the
Commission's public interest mandate was broad enough to
authorize EEO regulation has now been resolved by
congressional acquiescence and both tacit and explicit
congressional approval.
40. Although we sought and received extensive public
comment on the nexus between EEO regulation and our public
interest mandate to foster diversity of programming, we have
concluded that resolution of that issue is not dispositive, in and
of itself, of our statutory authority {or two reasons. First, as
‘discussed above, Congressional ratification provides an
independent basis for our authority. Second, it is clear from
reviewing the 1984 and 1992 Cable Acts and their legislative
histories that Congress's purpose in granting us authority to
regulate the EEO practices of video providers and in ratifying
our authority to regulate the EEO practices of broadcasters was
partly but not solely to foster diversity of programming.
Congress endorsed recruitment and nondiscrimination
requirements for two distinct purposes: to foster diverse
programming by increasing the number of womer and
minorities in positions that have an impact on programming
decisions, and to deter racial and gender discrimination. Both
78a
are set forth as express purposes of the cable EEO rule
amendments enacted in 1992. As noted above, Congress stated
that EEO rules both "advance[] the Nation's policy favoring
diversity in the expression of views in the electronic media" and
are "required in order to effectively deter racial and gender
discrimination." Congress plainly thought it important to
increase the number of minorities and women in upper-level
positions in order to further the national policy favoring the
expression of diverse views and perspectives in the electronic
media.” But it is also clear that Congress did not limit the EEO
requirements to upper-level positions. Section 634(d)(1)
required the Commission to amend its cable EEO rules,
including its recruitment rules, to "promote equality of
employment opportunities for females and minorities in each of
the job categories itemized” in section 634(d)(3). Those include
all categories of employment, including such categories as
"semiskilled operatives” and "unskilled laborers" that appear to
have no direct influence on programming.” Similarly, the
broadcast EEO Rule that Section 334 codified applied to all
categories of employment, not just management or program-
related positions. We believe that Congress required us to adopt
and enforce EEO program requirements with respect to all job
® 1992 Cable Act, Section 22(a). See also H.R. No. 102-628, 102d Cong.,
2nd Sess. 111-12 (1992) ("The Committee finds that continued rigorous
enforcement of equal employment opportunity rules and regulations is
required in order to deter effectively racial and gender discrimination.”).
® See 1992 Cable Act, Section 22(a)2) ("increased numbers of females and
minorities in positions of management authority in the cable and broadcast
television industries advances the Nation's policy favoring diversity in the
expression of views in the electronic media...”).
79a
categories, including lower-level jobs, because word-of-mouth
recruitment practices may be inherently discriminatory when
minorities and women are poorly represented on an employer's
staff -- particularly when they are scarce in the management
ranks where hiring decisions are made. Outreach in recruitment,
as well as a nondiscrimination requirement, is necessary to
deter discrimination in such circumstances so that the
homogenous workforce does not simply replicate itself.
41. Since Congress clearly intends that we apply recruitment
and other EEO requirements to al/ job categories in order to
deter discrimination, we have concluded that we should apply
our new EEO requirements to all job categories even if we were
to conclude that some of those categories have no impact on
programming decisions. Therefore, we conclude that whether
there is a nexus between EEO regulation for all job categories
and our public interest mandate to foster diversity of
programming is not dispositive of our statutory authority. We
nevertheless address in the following sections the nexus
between our EEO rules and our statutory mandates to foster
diversity of programming and minority ownership because we
believe that the rules we adopt today further, and thus find
additional statutory support in, those mandates.
c. Section 309(j)
42. In the NPRM, we observed that Section 309(j) of the
Communications Act establishes a congressional policy
favoring the dissemination of licenses among a wide variety of
applicants, including members of minority groups and women,
as part of a broad policy of fostering economic opportunity.®
Section 309(j), as amended in 1997, requires the Commission
to award all commercial broadcast licenses for which mutually
exclusive applications are filed (except for initial digital
* NPRM, 13 FCC Red at 23017-18 (paras. 36-37).
80a
television applications) by competitive bidding.” In
implementing the competitive bidding requirements, the
Commission must: promote economic opportunity and
competition and ensure that new and innovative technologies
are readily accessible to the American people by avoiding
excessive concentration of licenses and by disseminating
licenses among a wide variety of applicants, including small
businesses, rural telephone companies, and businesses owned
by members of minority groups and women ....©’ Additionally,
the Commission must promote "economic opportunity for a
wide variety of applicants, including small businesses, rural
telephone companies, and businesses owned by members of
minority groups and women,” and ensure that those entities "are
given the opportunity to participate in the provision of
spectrum-based services, and, for such purposes, consider the
use of tax certificates, bidding preferences, and other
procedures ...."% —
43. We tentatively concluded in the NPRM that Section
309(j) provides statutory authority to implement new EEO rules
because the statutory goal of fostering minority and female
ownership in the provision of commercial spectrum-based
services would be furthered by nondiscrimination and outreach
requirements, which are designed to foster equal employment
opportunities for minorities and women in the broadcast
industry. We stated our belief that employment in the
broadcasting industry provides minorities and women with the
% 47 U.S.C. § 309(), as amended by Balanced Budget Act of 1997, Pub.
L. No. 105-33, 111 Stat. 251 (1997).
7 47 U.S.C. § 30%jX3).
® 47 U.S.C. § 30%jX4).
® NPRM, 13 FCC Red at 23018 (paras. 37-38).
<i eisai aaa
8la
skills needed to acquire and operate a broadcast station and may
help them in becoming aware of ownership opportunities. Such
employment may also facilitate their acquisition of capital
needed to purchase a broadcast station, as financing sources are
generally more willing to work with borrowers that have a track
record in the business they seek to own and operate.
Furthermore, we noted that we have previously concluded that
there is a link between the policies furthered by our EEO rules
and the fostering of ownership by minorities and women.” We
also noted that Congress appears to have concluded that such a
link exists. In codifying the cable EEO requirements in 1984,
the House Commerce Committee asserted that "a strong EEO
policy is necessary to assure that there are sufficient numbers of
minorities and women with professional and management level
experience within the cable industry, so that there are
significant numbers of minorities and women with the
‘background and training to take advantage of existing and
future cable system ownership opportunities."”"' We asked
” See, e.g., Report, 9 FCC Red at 6319 (noting that "management positions
... are Often stepping stones to ownership."); Regulatory Treatment of
Mobile Services, Third Report and Order, 9 FCC Rcd 7988, 8097 (1994)
("EEO rules for commercial mobile radio service (CMRS) providers are
appropriate and necessary to achieve the statutory goal of increased
ownership opportunities for minorities and women in spectrum-based
services. By having EEO rules that apply to all CMRS providers provide
increased communications experience for minorities and women. This
experience will, in turn, enable them more easily to become owners of
communications enterprises.”).
” HLR. Rep. No. 934, 98th Cong., 2d Sess. at 84-85 (1984). Congress
reiterated this position when it passed the 1992 Cable Act, declaring that "a
strong EEO policy is necessary to assure sufficient numbers of minorities
and women gain professional and management level experience within the
television industry, and thus that significant numbers of minorities and
women obtain the background and training to take advantage of existing and
future television broadcasting ownership opportunities.” H.R. Rep. No. 628,
a a a aaa a el
82a
commenters to submit evidence establishing the nexus between
employment opportunities for minorities and women and
ownership opportunities.
44. After considering the comments received in response to
the NPRM, we conclude that Section 309(j) provides statutory
authority to implement new EEO rules. We disagree with
commenters who maintain that our reliance on Section 309(j)
is misplaced because it relates to the use of competitive bidding
for commercial broadcast licenses.” As we pointed out in the
NPRM, the reference in Section 309(j) to tax certificates, a
preferential tax treatment available upon the sale of broadcast
stations and cable systems to minorities, suggests that Congress
did not intend to limit the Commission's authority under
Section 309(j) to measures directly associated with the
competitive bidding process.
45. Moreover, we believe that there is a strong nexus
between employment of minorities and females and ownership
opportunities. Numerous commenters support this view.”
MMTC asserts that employment opportunities help minorities
102d Cong., 2d Sess. at 114 (1992).
™ National Association of Broadcasters (NAB) Comments at 18; Evening
Post Comments at 6.
” See e.g., Minority Media and Telecommunications Council and 29 other
organizations (MMTC) Comments at 169; American Women in Radio and
Television (A WRT) Comments at 7 (a national, non-profit organization of
professional women and men who work in radio, television, cable,
advertising and related fields); National Hispanic Foundation for the Arts
(NHFA) Comments at 6-10 (non-profit organization whose mission is to
improve the image of Latinos in this country by developing a better
perception of Latinos in the entertainment industry); NOW Foundation and
five other organizations (NOW) Comments at 8-11; U.S. Small Business
Administration (SBA) Comments at 1.
83a
obtain the skills needed to become owners.” AWRT states that
increasing the number and type of employment opportunities
available for women and minorities will increase the number of
women and minorities who seek ownership opportunities
because training and experience are "critical elements" in
deciding to seek ownership of broadcast and cable facilities.
AWRT also states that an informal survey of its membership
reveals that those members who are, or have been, owners of
broadcast facilities had significant prior experience working in
the industry and view their employment experiences as integral
to both their decision to move up to ownership and their success
as an owner.” According to NOW, the connection between
management experience and ownership opportunities is
"fundamental."” NOW posits that "women and minorities have
a particular need for broadcast experience because they
typically must be more qualified than their White male
counterparts in order to find financial backing. Under-
capitalization poses one of the most significant obstacles to
women and minorities hoping to purchase mass media
outlets."
46. Commenters also cite the experiences of broadcast
station owners and provide affidavits from numerous broadcast
station owners as evidence of the nexus between employment
™ MMTC Comments at 169.
> AWRT Comments at 7.
7
” NOW Comments at 8.
™ Id. at 10.
84a
and ownership opportunities.” Many of these owners describe
how they or their colleagues started in entry-level or even
internship positions and worked their way up the ladder to
management positions and then to ownership.” In addition,
many of the owners attest that employment opportunities
provide minorities and women with the skills and training
needed to acquire and successfully operate stations;*! that lack
of access to capital is one of the greatest impediments to
broadcast station ownership by minorities and women;™ and
”® See, e.g., NOW Comments at 12 (citing the experiences of Cathy Hughes,
CEO of Radio One, and Joseph Rey, the principal investor in Rainbow
Broadcasting Ltd. as evidence of the nexus between employment
ties for women and minorities and ownership opportunities),
NHFA Comments at 6-11 and Testimony of Nely Galan (citing the
experience of Nely Galan, President of Entertainment at Telemundo
Network Group, LLC, as evidence that a strong nexus exists between hiring
minorities and women and promoting ownership opportunities for these
19, 20, 21 and 22.
© MMTC Comments, Vol. III, Exhibits | (Declaration of Alfredo Alonso),
3 (Declaration of W. Don Cornwell), 8 (Declaration of Serena Ferguson
Mann), 9 (Declaration of Skip Finley), 10 (Declaration of Ragan A. Henry),
11 (Declaration of Cathy Hughes), 12 (Declaration of Chesley Maddox-
Dorsey), 19 (Declaration of Rokia Smith) and 20 (Declaration of Jeffrey H.
Smulyan).
8} MMTC Comments, Vol. III, Exhibits 1 (Declaration of Alfredo Alonso),
2 (Declaration of Thomas Castro), 10 (Declaration of Ragan A. Henry), 11
(Declaration of Cathy Hughes), 12 (Declaration of Chesley Maddox-
Dorsey), 17 (Declaration of Russell Perry), 21 (Declaration of Dennis
2 MMTC Comments, Vol. III, Exhibits 6 (Declaration of Willie D. Davis),
10 (Declaration of Ragan A. Henry), 12 (Declaration of Chesley Maddox-
Dorsey), 17 (Declaration of Russell Perry) and 22 (Declaration of James L.
Winston).
;
‘
t
;
:
85a
that broadcast experience, particularly management experience,
is essential for minorities and women to secure financing to
acquire stations.” Further, a number of the station owners
express concern that, without any EEO outreach requirements,
minorities and women will not have the opportunity to obtain
the training and experience needed to move up to station
ownership.”
47. NAB rejects this evidence as "irrelevant or anecdotal at
best."** However, NAB does not explain why it believes that
this evidence is irrelevant, nor does it explain why it thinks that
the Commission should disregard anecdotal evidence from an
array of individuals with extensive experience in the broadcast
industry.“ Another commenter argues that the proposed
*® MMTC Comments, Vol. II], Exhibits 1 (Declaration of Alfredo Alonso),
6 (Declaration of Willie D. Davis), 11 (Declaration of Cathy Hughes), 12
(Declaration of Chesley Maddox-Dorsey) and 21 (Declaration of Dennis
Swanson).
“ MMTC Comments, Vol. III, Exhibits 2 (Declaration of Thomas Castro),
6 (Declaration of Willie D. Davis), 11 (Declaration of Cathy Hughes), 12
(Declaration of Chesley Maddox-Dorsey) and 17 (Declaration of Russell
Perry).
** NAB Reply Comments at 2.
“ See Mausolf v. Babbit, 125 F.3d 661, 667-70 (8th Cir. 1997), cert.
denied, 118 S.Ct. 2366 (1998) ("Mausolf") (regulations promulgated by an
agency will be upheld if they are reasonably related to the purposes of the
enabling legislation; under rational basis test of 5 U.S.C § 706(2)A),
snowmobiling restrictions were rationally based on biological opinions
finding possible adverse impact of snowmobiling on gray wolf population
and on anecdotal evidence in record of harassment of gray wolves). Cf
Schliefer v. City of Charlottesville, 159 F.3d 843, 849, 850 (4th Cir. 1998),
cert. denied, 119 S.Ct. 1252 (1999) ("Schliefer”) (In the First Amendment
context, where government must demonstrate that the recited harms are real,
not merely conjectural and that the regulation will in fact alleviate these
harms in a direct and material way, the standard “has never required
86a
broadcast EEO Rule rests upon the unsupported assumption that
"all broadcast employees are on a lifetime broadcast career
track, from entry level through programming and management
ranks to ownership."*’ This commenter asserts that many
employees in fact leave broadcast stations to go to work for
nonbroadcast employers™ and cites numerous examples of
minority and female employees who left broadcasting to pursue
other careers.” This argument misses the point. It is not
necessary to find that all minority and female employees, or
even a majority of minority and female employees, move up
through the ranks to ownership in order to establish a nexus
between minority and female employment and ownership
opportunities. Rather, we think it is sufficient that the
employment of minorities and women in the broadcast industry
greatly enhances the opportunities for minorities and women to
own broadcast stations and that, without such employment,
ownership opportunities for minorities and women will be
diminished. Based on the record, we conclude that this is the
scientific or statistical ‘proof of the wisdom of the legislature's chosen
course;" anecdotal evidence cited by the court).
+ Haley Bader & Potts (HBP) Comments at 21 (law firm representing
owners of 30 radio stations).
J, Sowada at 2; Declaration of Eric F. Brown at 2; Declaration of Louis H.
at 2
en ae
87a
48. An additional statutory basis for new EEO rules is
grounded in the Commission's authority to regulate
broadcasting to serve the public interest and promote diversity
of programming.” The Commission has broad authority under
the Communications Act to regulate and license broadcasters as
the public convenience, interest, or necessity requires.*!
® We discussed this statutory basis in the NPRM, 13 FCC Red at 23019-22
(paras. 39-45).
*' This authority is based on several provisions of the Act. For example,
Section 301 of the Act provides that no person can transmit radio signals in
the U.S. except under a license granted by the Commission. 47 U.S.C. §
301. Section 303 authorizes the Commission to license and regulate use of
the radio spectrum “as public convenience, interest, or necessity requires,”
to "generally encourage the larger and more effective use of radio in the
public interest,” and to enact regulations to carry out the provisions of the
Act. 47 U.S.C. § 303(f), (g), and (r). The Supreme Court has held that
Section 303(r) confers authority on the Commission to issue regulations
codifying its view of the public interest licensing standard, so long as that
view is based on consideration of permissible factors and is otherwise
reasonable. National Citizens, 436 U.S. at 793. Section 307 directs the
Commission to grant and renew station licenses "if public convenience,
interest, or necessity will be served thereby.” 47 U.S.C. § 307(a), (b).
Section 309 directs the Commission to determine whether the “public
interest, convenience, and necessity will be served" by the grant of
applications for licenses, license modifications, or license renewals. 47
U.S.C. § 309(a). Section 310(d) imposes the same standard on the grant of
assignment and transfer applications. See 47 U.S.C. § 310(d). The 1996 Act
modified the procedures for processing broadcast renewal applications and
refined the standard to be applied by the Commission in determining
whether to grant renewal applications. Prior to enactment of the 1996 Act,
the grant of renewal applications was controlled by the general “public
_ interest, convenience, and necessity” standard set forth in Section 309%a). As
amended in 1996, the Communications A ct directs the Commission to grant
a broadcast renewal application if it finds, with respect to the station at
issue, that the licensee has served the public interest, convenience, and
necessity; the licensee has not committed any serious violations of the Act
or the FCC's rules; and the licensee has not committed a series of violations
of the Act or rules that constitute a pattern of abuse. 47 U.S.C. § 309(k). The
Moreover, Congress amended Section 1 of the Communications
Act in 1996 to make it clear that the Commission's mandate is
to regulate interstate and foreign communications services so
that they are "available, so far as possible, to all people of the
United States, without discrimination on the basis of race,
color, religion, national origin, or sex ..."” This recent
amendment, which applies to all entities subject to the
Communications Act,” amplifies the Commission's general
public interest mandate to ensure that broadcasting and other
programming services serve the needs and interests of all
sectors of the community, and indicates more specifically that
such services shall be provided to all Americans without
discrimination on the basis of race or any other suspect
classification. Further, in Section 257(b) of the
Communications Act, Congress specifically identifies
"diversity of media voices" as one of the “policies and
purpo
This text is long and has been trimmed here. Open the source document for the complete record.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.