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S - ` Px5.` ` In accordance with the Commission's decision in Eagle Radio, KYKXFM submitted EEO  xprogress reports on April 1, 1994, April 1, 1995 and April 9, 1996, to fulfill its reporting conditions. By  xMletter dated September 14, 1995, Commission staff determined that the station's 1994 and 1995 EEO  x0progress reports showed that the licensee had failed to recruit for two (33.3%) of its six fulltime  x.vacancies and that minorities were present in four (66.7%) of the six applicant pools. In its letter to the  xlicensee, the staff acknowledged that KYKXFM had made some progress in recruiting minorities, but  xemphasized that recruitment should occur for each vacancy. By letter dated April 22, 1996, Commission  x>staff determined that the licensee's final EEO progress report was satisfactory since KYKXFM had  xattracted five minorities for its two fulltime vacancies and minorities were present in each applicant pool.  S-On September 4, 1996, the station's renewal application was granted. 7l yOx-  ԍxUpon expiration of the station's shortterm renewal, the licensee had filed another renewal application to cover the period from August 1, 1995, to August 1, 1997.  Sh- ` Bx6.` ` With respect to the licensee's present renewal application, review of the record reveals  S@- xthat the licensee recruited for only four (50%) of its eight vacancies.b@x7l yOX-ԍxThe current license term ended on August 1, 1997.b The licensee explains that, in one  xinstance, it hired an individual from a competing station when an employee unexpectedly resigned and,  xin another, it hired a walkin applicant. It also hired two former student interns for fulltime positions  x=without recruitment upon their graduation from college. However, the Commission's EEO Rule requires  xthat a licensee recruit for minority and female applicants "whenever job vacancies are available in its  Sx- xoperation." See Section 73.2080(c)(2) of the Commission's Rules; Tidewater Communications, Inc., 12 FCC Rcd 11830, 11832 (1997). x  S- ` x7.` ` There are no substantial and material questions of fact warranting designation for hearing  xand grant of the applications would be consistent with Section 309(k) of the Communications Act of 1934,  S- xas amended, 47 U.S.C.  309(k). See Astroline Communications Co. v. FCC, 857 F.2d 1556 (D.C. Cir.  S- x1988) ("Astroline"). Further, we find no indication of employment discrimination. The licensee recruited  x^and interviewed minorities. Therefore, because the licensee is otherwise qualified, grant of the applications will serve the public interest. 47 U.S.C.  309(d)(2). " ,l(l(,,!"Ԍ S- ` x8.` ` However, we find that the licensee violated our EEO Rule because it failed to recruit for  xhalf of its vacancies. Moreover, we find this violation to be of aggravated seriousness because the licensee  S- x/violated our EEO Rule in its previous regular license renewal term. In Eagle Radio, Inc., we imposed  xsubstantial sanctions in an attempt to ensure that the licensee would, in the future, comply with the EEO  x0Rule. While some progress was evidenced during the period of time when the licensee was under  S8- xCommission scrutiny by virtue of the shortterm renewal and reporting conditions imposed in Eagle Radio,  S- xInc., it was still necessary for the staff to explicitly warn the licensee of its obligation under the EEO Rule  xto recruit for minorities for all of the station's vacancies. Nonetheless, shortly after the licensee was  xrelieved of direct Commission scrutiny by virtue of the grant of its shortterm renewal application and the end of reporting conditions, its record again evidences serious noncompliance with the EEO Rule.  SH - ` Bx9. ` ` In determining a forfeiture or other sanctions for EEO violations, we ordinarily look to  xcase precedent, taking into account the relevant statutory factors in Section 503(b)(2) of the  x=Communications Act of 1934, as amended, including the nature, circumstances, extent and gravity of the  x{violations, and a licensee's record of compliance with our rules. In our evaluation, we consider the  xstation's size, number of hiring opportunities, MSA size, recruitment patterns, applicant and interview  S - xLpools, assessment and recordkeeping. See e.g., Stauffer Communications, Inc., 10 FCC Rcd 5060, 5061  x/(1995). However, in the instant case, the most reliable basis for assessing the sanctions warranted is  xKYKXFM's EEO record during the current license term and its apparent pattern of noncompliance with the EEO Rule, taking into consideration the other relevant factors set forth in Section 503(b)(2).  S- ` x 10. ` ` The record reflects that the licensee was previously found in Eagle Radio, Inc. to have  x|violated the EEO Rule because of deficient recruitment efforts and inadequate selfassessment.  xNotwithstanding the imposition of a forfeiture in the amount of $31,250, shortterm renewal, and reporting  xconditions, the licensee has again failed to make adequate recruitment efforts. Because the sanctions  xpreviously imposed were evidently insufficient to motivate the licensee to comply with our EEO Rule,  xwe will grant the licensee's renewal application for a shortterm and subject to the issuance of a Notice of Apparent Liability in the amount of $35,000. x` `  SP- KEAN(AM)/KEANFM, Abilene, Texas  S- ` x 11.` ` After reviewing the record before us, we conclude that there are no substantial and  xmaterial questions of fact warranting designation for hearing and grant of the applications would be  S- xconsistent with Section 309(k) of the Communications Act of 1934, as amended, 47 U.S.C.  309(k). See  S- xAstroline. Further, we find no indication of employment discrimination. The licensee recruited and  xinterviewed minorities. Therefore, because the licensee is otherwise qualified, grant of the applications will serve the public interest. 47 U.S.C.  309(d)(2). x  S - ` ox 12.` ` The Commission uses an effortsbased approach to assessing EEO compliance. We do  xnot require that the proportion of minorities or women employed equal their presence in the labor force  xor that any certain percentage of an entity's staff be composed of minorities or women. Instead, we focus  xyon the station's EEO program, its consistent efforts to contact sources likely to refer qualified female and  SH$- xjminority applicants and selfanalysis of its outreach program. See Streamlining Broadcast EEO Rule and  S %- x.Policies, 11 FCC Rcd 5154, 5158 (1996). The objective of our effortsbased approach is to increase the  xpool of qualified female and minority candidates from which a licensee can then select the best qualified  S&- xapplicant, without regard to gender, race, or ethnic origin. Id. at 515859. Although the stations recruited"&,l(l(,,n("  xfor all of their vacancies during the review period, they received only four minority applicants in a local  S- xlabor force which includes 19.2% minorities.X7l yO@-  ԍxThe current license term ended on August 1, 1997. According to the 1990 Census, the Abilene, Texas  xMetropolitan Statistical Area, in which the stations are located, had a 47.8% female and a 19.2% minority labor force (5.5% Black, 12.3% Hispanic, 1.1% Asian/Pacific Islander, and 0.3% American Indian).  The stations did not modify their recruitment sources, even  xthough the sources being used were unproductive in generating sufficient minority referrals. Indeed, the  xlicensee failed to maintain records necessary for meaningful EEO selfassessment in that it could not  xidentify the referral source of 46 (43.4%) of its 106 applicants. Nor could the licensee identify the race  xof 36 (34.0%) of its 106 applicants. We also find that the licensee's use of one applicant pool which was not minority inclusive for three hires is further evidence of the licensee's lack of selfassessment.  S- ` ~x 13.` ` After carefully reviewing the facts of this case, we find that the record here is similar to  S- xthat of KJIN(AM)/KCIL(FM), Houma, Louisiana, in Guaranty Broadcasting Corp., 12 FCC Rcd 1660  Sp- x(1997)..Xp7l yO -  ԍxThe stations are located in the HoumaThibidaux, Louisiana Metropolitan Statistical Area, which had a  x,15.9% minority labor force in 1990 (11.5% Black, 1.4% Hispanic, 0.4% Asian/Pacific Islander and 2.6% American Indian).. Like KEAN(AM)/KEANFM, KJIN(AM)/KCIL(FM) recruited for all nine of its vacancies and  xMhad only seven applicant/interview pools because multiple hires were made from one applicant pool.  xAlthough both stations are located in areas with significant minority labor forces (15.9% for  xKJIN(AM)/KCIL(FM) and 19.2% for KEAN(AM)/KEANFM), they failed to attract minorities to a  xsignificant number of their vacancies. KJIN(AM)/KCIL(FM) attracted only two minorities (1.8%) out of  x112 applicants, while only four (3.8%) of KEAN(AM)/KEANFM's 106 applicants were minorities.  x|Further, KJIN(AM)/KCIL(FM) had only two minorities (4.7%) out of 43 interviewees, while  xKEAN(AM)/KEANFM had only three minorities (4.3%) out of 69 interviewees. Like  xKEAN(AM)/KEANFM, KJIN(AM)/KCIL(FM) failed to modify its recruitment sources in order to  x[produce more minority referrals. We renewed the license of KJIN(AM)/KCIL(FM) subject to reporting conditions and issued a Notice of Apparent Liability of $10,000.  S- ` x 14.` ` Both KEAN(AM)/KEANFM and KJIN(AM)/KCIL(FM) failed to demonstrate that their  xrecruitment efforts were productive or that they had meaningfully selfassessed the effectiveness of those  xefforts. However, KEAN(AM)/KEANFM attracted more minorities to its applicant and interview pools  x(minorities in four of seven applicant pools and in three of seven interview pools, including one of four  xupperlevel pools) than KJIN(AM)/KCIL(FM) (minorities in one of seven applicant/interview pools and  xxnone in the eight upperlevel pools). Nonetheless, unlike KJIN(AM)/KCIL(FM), KEAN(AM)/KEANFM  xNfailed to maintain complete referral source and race data for a significant number of its applicants.  xTherefore, we conclude that the issuance of a Notice of Apparent Liability in the amount of $10,000 is appropriate. x  S- KKYS(FM), Bryan, Texas  S- ` x15.` ` After reviewing the record before us, we conclude that there are no substantial and  xmaterial questions of fact warranting designation for hearing and grant of the applications would be  S8- xconsistent with Section 309(k) of the Communications Act of 1934, as amended, 47 U.S.C.  309(k). See  S - xAstroline. Further, we find no indication of employment discrimination. The licensee recruited and " ,l(l(,,!"  xinterviewed minorities. Therefore, because the licensee is otherwise qualified, grant of the applications will serve the public interest. 47 U.S.C.  309(d)(2).  S- ` Cx16.` ` As noted above, the Commission uses an effortsbased approach to assessing EEO  S`- xMcompliance. See paragraph 13, supra. Twelve (57.1%) of the station's 21 hires were wordofmouth  xreferrals, and the licensee used only wordofmouth referrals for eight vacancies. A licensee's use of  S- xwordofmouth recruitment may not be proper if its tends to exclude minorities and females. See Rust  S- xCommunications Group, Inc., 73 FCC 2d 39, 48 n.13 (1979); see also Historic Hudson Valley Radio, Inc.,  x11 FCC Rcd 7391, 739697 (1996). Additionally, we have held that a licensee failed to selfassess  x adequately the effectiveness of its recruitment sources where the licensee's hires for a majority of its  Sp- xvacancies were referred by informal means such as wordofmouth. See Davidson County Broadcasting  SH - xCompany, Inc., 12 FCC Rcd 3375, 3383 (1997). In the instant case, the licensee utilized only wordof x=mouth recruitment for eight vacancies which resulted in only one applicant/interviewee per position, the  xactual hire. None of these single applicants were minorities, indicating that recruitment sources other than  x\wordofmouth should have been utilized. Further, over half (57.1%) of the station's total hires were  x<wordofmouth referrals, which resulted in only one minority inclusive applicant pool. It thus appears that  x.the licensee failed to selfassess its program by not recognizing the ineffectiveness of its wordofmouth  xrecruitment methods and by not varying or using other outside recruitment sources, including minorityspecific sources, in order to attract qualified minority applicants.  S- ` ~x17.` ` After carefully reviewing the facts of this case, we find that the record here is similar to  S- xbut more egregious than that of WKNR(AM), Cleveland, Ohio, in CV Radio Associates, L.P., 12 FCC  S- x{Rcd 14016 (1997), petition for recon. pending.@X7l yO-  yԍxThe stations are located in the Cleveland, Ohio/ClevelandLorainElyria, Ohio Metropolitan Statistical Area,  xwhich had a 17.3% minority labor force in 1990 (14.2% Black, 1.8% Hispanic, 1.1% Asian/Pacific Islander and 0.2% American Indian).@ WKNR(AM) filled 31 vacancies but had only 30  xapplicant/interview pools (23 upperlevel) because one pool was used to fill two lowerlevel vacancies.  xThe station contacted one to four recruitment sources for 29 vacancies, including four minority sources.  xMinorities were present in only eleven (36.7%) of the station's 30 applicant/interview pools, including six  x(26.1%) of its 23 upperlevel applicant/interview pools. Despite its failure in attracting qualified minority  xlapplicants in an area with a significant minority labor force (17.3%), the licensee did not use more  ximinority recruitment sources or otherwise modify its recruitment list. Further, WKNR(AM) used wordof xmouth recruitment for 18 (58.1%) of its 31 vacancies, which resulted in only two minority applicants (one  xyupperlevel). Ten (43.5%) of WKNR(AM)'s 23 upperlevel hires were obtained by wordofmouth, and  xLthe only applicants for four of those ten upperlevel vacancies were wordofmouth referrals. However,  x[WKNR(AM) used at least one general recruitment source, in addition to wordofmouth recruitment, for  xkall of the 29 vacancies for which it recruited. 12 FCC Rcd at 14020 and n. 1. We renewed the license  x[of WKNR(AM) subject to reporting conditions and issued a Notice of Apparent Liability in the amount of $14,000.  S8- ` x18.` ` The licensees of WKNR(AM) and KKYS(FM) failed to demonstrate that their recruitment  x.efforts were effective or that they adequately selfassessed their stations' EEO programs. Both stations  x.failed to attract minorities to a significant number of their applicant/interview pools and did not attempt  xto modify their recruitment lists to rectify this failure. Both stations relied heavily on informal recruitment  xmethods such as wordofmouth referrals which resulted in few minority applicants. However,  x\WKNR(AM) also used at least one other general source for the 29 of 31 vacancies where it recruited. "p#,l(l(,,$"  xKKYS(FM), on the other hand, relied only upon wordof mouth recruitment for eight of its 21 vacancies.  x.Further, although KKYS(FM) is located in an area with a higher minority labor force than WKNR(AM)  x(25.5% and 17.3%, respectively), minorities were present in a lower percentage of its applicant/interview  S- x-pools (27.8% and 36.7%, respectively).X7l yO-  {ԍxThe current license term ended on August 1, 1997. According to the 1990 Census, the BryanCollege  xStation, Texas Metropolitan Statistical Area, in which the station is located, had a 44.8% female and a 25.5% minority labor force (9.6% Black, 12.1% Hispanic, 3.6% Asian/Pacific Islander, and 0.2% American Indian).  Therefore, we conclude that the issuance of a Notice of Apparent Liability in the amount of $16,000 is appropriate.  S8-   S-x III. ORDERING CLAUSES ă " S- ` `"x19.` ` Accordingly, IT IS ORDERED that the license renewal application filed for Station  Sp- x KYKXFM IS GRANTED for a short term expiring August 1, 2001, subject to a NOTICE OF  SH - xxAPPARENT LIABILITY FOR FORFEITURE in the amount of $35,000, pursuant to Section 503 of the Communications Act of 1934, as amended, 47 U.S.C.  503. x` ` " S - ` "x20. ` ` IT IS FURTHER ORDERED that the license renewal applications filed for Stations  S - x- KEAN(AM)/KEANFM and KKYS(FM) ARE GRANTED subject to NOTICES OF APPARENT  S - xLIABILITY FOR FORFEITURE in the amounts of $10,000 and $16,000, respectively, pursuant to Section 503 of the Communications Act of 1934, as amended, 47 U.S.C.  503.  S- ` Bx21.` ` IT IS FURTHER ORDERED that the assignment of license applications filed for  S- xStations KYKXFM, KEAN(AM)/KEANFM and KKYS(FM) ARE GRANTED subject to the condition  xzthat, based on the applicants' specific representations in a letter dated July 22, 1998, the assignor and  xjassignee will assume the consequences associated with the assignee succeeding to the place of the current licensee in the renewal application. x  S- ` _x22.` ` IT IS FURTHER ORDERED that the forfeiture proceedings and the August 1, 2001,  S-expiration of the renewal in this case ARE SUSPENDED until further notice. x  S- ` x23. ` ` IT IS FURTHER ORDERED that one copy of this Memorandum Opinion and Order be sent to the licensees and assignee by Certified Mail Return Receipt Requested. x` ` x  S-x` `   FEDERAL COMMUNICATIONS COMMISSION  S- x x` `  Magalie Roman Salas  S-x` `  Secretary ",l(l(,,"  X-    #Xj\  P6G;XP#  Statement of Commissioner Harold FurchtgottRoth, ` `  Concurring in Part and Dissenting in Part   W!In re Applications of Radio Sun Group of Texas, Inc., For Renewal of Licenses of Stations   KYKXFM, Longview, Texas; KEAN(AM)/KEANFM, Abilene, Texas; and Radio   SunGroup of Bryan/College Station, Inc., For Renewal of License of Station KKYS(FM),  Xv-Bryan, Texas  X_-#Xj\  P6G;XP#   I concur in the grant of these license renewals. I must dissent, however, from the issuance   of these Notices of Apparent Liability ("NAL") even if sanctions are temporarily stayed for violation of the "outreach" element of the Commission's EEO rule. hI.  In a decision of great significance for this agency, the United States Court of Appeals for   [the District of Columbia Circuit held that the "outreach" parts of the EEO rule, 47 CFR sections  X-  73.2080(b) & (c), violate the equal protection component of the Fifth Amendment. Lutheran  X{-  jChurchMissouri Synod v. FCC, 141 F.3d 344 (D.C. Cir. 1998). In my view, this ruling deserves   more than to be "note[d]" in passing, NAL at para. 2, by this independent administrative agency.   <Rather, it deserves the full respect that should be accorded to the decision of duly appointed and  X8-  [confirmed Article III judges, whose constitutional duty it is "to say what the law is." Marbury  X#-v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803).  X- ? To be sure, the Court of Appeals has not issued a formal mandate in Lutheran Church.   I recognize that the court's invalidation of the outreach provisions thus has not technically been   implemented and that the relevant sections of the EEO rule still sit on our books. The Court's   holding on the unconstitutionality of these EEO regulations was unmistakably clear, however, and   the panel opinion squarely rejected much of the boilerplate EEO language that is nevertheless  X-  Lincluded in the NAL. Compare Lutheran Church, 141 F.3d at 351353 (rejecting argument that   =outreach rule regulates only recruiting and that its enforcement does not depend on numerical  XZ-  =goals or statistical parity) with NAL at paras. 12, 16 (asserting that outreach rule governs only   candidate pool and that Commission uses only "effortsbased" approach in evaluating compliance   without relying on percentages or parity). In addition, the Commission applies the outreach   xprovisions to the stations' records in exhaustive detail and in conclusion issues notices of liability  X-  for over $60,000 to the licensee under the sole authority of those subsections.' isd Xy!-  ԍ#Xj\  P6G;XP#Moreover, the Commission errs in assuming that if the en banc court ruled the outreach  Xd"-  jprovision constitutional, the Bureau could automatically move to enforce this NAL. See NAL   at para. 2. Apart from the constitutionality of the rule, there is yet another potential legal   problem: the D.C. Circuit questioned whether the EEO rule sits atop a sound statutory structure,  X!%-  see Lutheran Church, 141 F.3d at 354, and intended to remand the case to the Commission in  X &-  order to decide that issue, see id. at 356. This issue thus may remain open on a possible remand  X&-  of the case by the en banc court. We would, of course, have to resolve that question before we"&,l(l(&" could lift the suspension of sanctions.' I believe that"y ,l(l(,,"   Kdeference to the D.C. Circuit's decision counsels greater restraint in the continued invocation and application of the EEO program requirements than is evidenced by this NAL. xFurthermore, although the NAL temporarily suspends the forfeiture proceedings and  X-the shortterm renewal expiration date, this is insufficient to prevent injury to the licensee. #Xj\  P6G;ynXP#In several ways, the licensee suffers harm as a result of today's action. First, the licensee, as well as the assignee which has agreed to step into its shoes, bears on its record the black mark  X_-made by this NAL. See Meredith Corp. v. FCC, 809 F.2d 863, 868869 (D.C. Cir. 1987). Not only does this have a potential adverse effect in future Commission proceedings, but it can also make access to capital more difficult. Second, given the Commission's apparent  X -assumption that it will resume fullscale enforcement of the EEO rule if and when Lutheran  X -Church is vacated, the implicit message to this assignee is that it must continue to maintain EEO programs, which causes "economic harm by increasing the expense of maintaining a  X -license." Lutheran Church, 141 F.3d at 349350.  XT-ԍ#Xj\  P6G;ynXP#Indeed, this message is telegraphed to all broadcast licensees, who thus fail to continue to incur the costs of these programs at their regulatory peril. Third, the term of the license now in effect for KYKXFM is ambiguous. The stated renewal is for a short term expiring August 1,  X -2001, NAL at para. 19, $c~but the August 1, 2001, expiration date of the renewal is then suspended,  X-id. at para. 21, but no effective expiration date is specified. What kind of license, then, does the station have in the interim? Because the NAL does not provide that the renewal filed for by KYKXFM is granted, as it does for all the other full term renewals, it is not clear that  XU-this renewal is in fact for a full term.Ub Xh-ԍ#Xj\  P6G;ynXP#In this regard, it is hard to see how the Bureau could "confirm[]" that the renewal was for a full term, NAL at para. 2, something never expressed in this Order.  If KYKXFM's current renewal is for anything less than the standard term, which it would have been but for the application of the EEO rule, then the Commission has in fact sanctioned the licensee. xFinally, if there is a possibility that application of a governmental rule could violate even one person's constitutional right to equal protection under the law a proposition more than likely here, given the panel opinion we as federal officials ought to be extremely reluctant to start down that path. It would perhaps be a different case if we were statutorily required by Congress to administer this program, but we are not. The entire EEO scheme is  X-founded entirely upon this Commission's interpretation of the "public interest" standard, see  Xq-Nondiscrimination Employment Practices of Broadcast Licensee, 13 FCC 2d 766 (1968).eq X"-ԍ#Xj\  P6G;ynXP#Although Congress has prohibited the Commission from revising our EEO regulations for  X#-television broadcast station licensees or permittees, see 47 U.S.C. section 334(a)(1)(2), this limitation does not, in my view, amount to an affirmative expression of authority for their promulgation under the public interest standard; it is, at best, a placeholder. In any event, this  X%-provision speaks only of regulations governing television licensees or permitees and thus can  X&-provide no support whatsoever for EEO rules as applied to radio licensees, the subject of this item. "q) 0*((" The Court of Appeals, however, has questioned whether this standard provides an adequate"Z@ 0*(("  X-statutory basis for the EEO rule. See supra note 1. Even if the "public interest" language could be interpreted as granting the Commission discretion to adopt EEO regulations, we ought to exercise that discretion in a way that does not put our policies on a collision course  X-with the Fifth Amendment. Cf. United States v. ThirtySeven Photographs, 402 U.S. 363, 369  X-(1971) (statutes should be construed to avoid, not to create, constitutional problems).#  X -ԍ#Xj\  P6G;ynXP#Notably, there are alternative, raceneutral means of furthering the public interest in not licensing broadcasters who violate the national policy against employment discrimination, the  X-original goal of the EEO rule. See Nondiscrimination Employment Practices of Broadcast Licensees, 13 FCC 2d 766 (1968). For instance, assuming we possess the necessary statutory authority, we might promulgate a rule to take account of whether a renewal applicant has broken either state or federal antidiscrimination laws. Such a rule has the benefit of ease of administration: broadcasters could simply certify whether they had been found liable for employment discrimination during the preceding license period, and renewal opponents could readily rebut those certifications. Such a rule would also leave the determination of discrimination up to the institutions best equipped to make that finding, the courts and the Equal Employment Opportunity Commission. # We should, in our discretion, decline to apply the EEO program requirements at least until we can be assured of their constitutionality. NII. xWhile I do not mean to suggest that the Commission has refused to comply with the D.C. Circuit's ruling, I believe it appropriate to say a few words about the concept of agency nonacquiescence in judicial decisions, a stance that I hope the Commission does not adopt in  X -the future with respect to this litigation. Agency nonacquiescence may be a legitimate course  X -of action in certain circumstances, see Davis & Pierce, Administrative Law Treatise, section 2.9, at 102105 (3d ed. 1994), but the justification for such conduct dissipates when the case  X-at issue presents a constitutional question, as here. x xAdministrative agencies are thought to have some expertise when construing statutes  X:-that Congress has charged them with administering. See Chevron  v. Natural Resources  X%-Defense Council, 467 U.S. 837, 84243 (1985). Therefore, they arguably have a right to "disagree" with a court of law about the proper interpretation thereof. But when it comes to interpreting the Constitution, agencies are afforded no such deference. That is a job for the  X-courts. See Syracuse Peace Council v. FCC, 867 F.2d 654, 658659 (D.C. Cir. 1989). The President and the Congress certainly have an independent duty to satisfy themselves of the constitutionality of their actions, but neither the President nor the Congress has delegated that power (assuming such power is even delegable) to this agency. There could thus be no impermissible interference by the judicial branch with the decisionmaking of an agency on  Xq-issues entrusted to its discretion by Congress. Cf. Lopez v. Heckler, 463 U.S. 1328 (1983) (warning, in discussion of agency nonacquiescence, of "risk of 'propel[ing] the court into the"\ 0*((|" domain which Congress has set aside exclusively for the administrative agency'") (quoting  X-SEC v. Chenery Corp., 332 U.S. 194, 196 (1947)). xMoreover, in a case such as this one, there is no chance that nonacquiescence in the D.C. Circuit's decision would allow the Commission to create a circuit split in order to  X-facilitate Supreme Court review.  See Davis & Pierce at 105106. Nor would adherence to  Xz-the decision create a lack of national uniformity in federal regulation.  Id. These two  Xe-fundamental premises of nonacquiescence simply do not pertain here because appeals for judicial review of FCC licensing determinations are within the exclusive jurisdiction of the  X7-D.C. Circuit. See 47 U.S.C. section 402(b). The only circuit court that ever could pass on  X" -the constitutionality of the EEO rule has definitively done so. See Estreicher & Revesz, "Nonacquiescence by Federal Administrative Agencies," 98 Yale L.J. 679, 752 (1989) (observing that arguments for nonacquiescence "are less persuasive . . . for the regional circuits . . . where they have been given nationally exclusive responsibility over particular subject matter, such as the D.C. Circuit has over various types of administrative appeals" because "there will be no intercircuit dialogue and percolation"). lLIII. xIn light of the foregoing, my preferred course of action would be simply to stay our  XU-hand with respect to all EEO matters until the Lutheran Church decision becomes final. That is generally feasible with respect to simple license renewals. Where license transactions such as sales are involved, however, the practical effects of deferring a decision can be extremely burdensome to the transacting parties, who face realworld deadlines for closing their deals. In such a situation, I believe that agency action is required and that, if otherwise warranted, we should simply grant the license renewal without actually applying the EEO rule or  X-declaring liability thereunder.  Where the licenses to be renewed are being transferred to a new owner, as here, the specific deterrent effect of the forfeiture will not be achieved because the current licenseholder against whom the fine is imposed will no longer operate the station.  X-As for the new owner, there will be time enough, if Lutheran Church is ultimately reversed,  Xs-to review that owner's compliance with EEO regulations.s X-ԍ#Xj\  P6G;ynXP#Again, however, our possible lack of statutory authority for the EEO rule may preclude  X-such review. See supra note 1.   XE-xAccordingly, I believe that the instant licenses should be renewed for full terms , but I would not apply the outreach provisions as the basis for any notice of apparent liability. To my mind, we owe greater deference to the opinion of the Court of Appeals than to continue to issue notices of apparent liability pursuant to those regulations. I no way do I insinuate that my colleagues have ignored the decision of the Court of Appeals, for they have clearly acknowledged the case, suspending sanctions in its light. But as I have noted, even with suspension, this licensee suffers real harm. In deference to the Court of Appeals, in view of the discretionary nature of the EEO scheme, and given the importance of the constitutional right to equal protection, I would have gone farther than the Commission and not applied the"#d0*((e"" EEO rule at all. x  X-x` `  hh*@*h*pp x xIn closing, I emphasize that I am profoundly uncomfortable with the prospect of enforcing rules or indirectly maintaining rules through the suggestion or coercion of "voluntary" industry standards that stand a chance of violating any person's right to be treated equally with his or her fellow citizens under the law. Similarly, I am troubled that any public agency would expend public funds for any purpose that may directly or indirectly  X1-threaten that fundamental right. "[T]he equal protection of the laws" guaranteed to "any" person, U.S. Const., Amdt. XIV, regardless of their race, is a principle that was hard fought  X -and stands as a tribute to the American dream of opportunity for everyone. We should take  X -no action that would undermine that great constitutional precept, as interpreted and applied by the judicial branch.  $P