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Concurring Statement of Commissioner Harold Furchtgott-Roth

In the Matter of Suspension of Requirement for Filing of Broadcast Station Annual Employment Reports and Program Reports

I believe that it is important to acknowledge publicly the unspoken premise that underlies this MO&O: now that the United States Court of Appeals for the D.C. Circuit has denied the petition for rehearing en banc in Lutheran Church - Missouri Synod v. FCC and issued its mandate in that case, sections 73.2080(b) & (c) are currently null and void. Although the MO&O does not say so, it is, after all, the present legal invalidity of these regulations that requires us to clarify the status of ancillary rules such as section 73.3612.

For my part, I see no need for broadcasters to report on the conduct of their EEO programs given the simple fact that, unless and until the Court of Appeals' mandate is stayed or its decision reversed by the Supreme Court, there is no longer a valid rule requiring the maintenance of such programs. In other words, it makes no sense to require licensees to report on the implementation of regulations that no longer exist. As for the statistical information sought in Form 395, it is clear from the Court's opinion that the government's use of racial statistics was key to the equal protection violation; whatever "outreach" rules the Commission might adopt in the future, we certainly cannot measure compliance or conduct enforcement based on the numerical proportionality of a station's workforce. I therefore perceive no legitimate need for the government to collect this information either.

Not only are broadcasters under no legal obligation to maintain EEO programs, as described above, but it bears emphasis that the law now is that these programs affirmatively deprive people of their constitutional right to equal protection under the laws and compel broadcasters to participate in that discriminatory scheme. See Lutheran Church, 141 F.3d 344, 350. I would not wish to be responsible, even in part, for the violation of any citizen's constitutional right to be treated equally with his fellow citizens under the law. Yet if the Commission were to continue to require reports on programs that have been ruled unconstitutional, thus telegraphing to licensees the message that an accounting of their conduct may someday be had, that could constitute an indirect but no less real constitutional violation.

Indeed, I am troubled by even the "encouragement" of such filings -- or of "voluntary" compliance with these unconstitutional regulations -- by this agency, which of course wields the Damoclean sword of broadcast licensing authority. See generally Davis & Pierce, I Administrative Law Treatise 232 (3d ed. 1994) (explaining that even agency statements that purport to be nonbinding "can have coercive effects through more subtle, less formal means" because "[t]o the extent that an agency possesses significant discretionary power over a class of regulatees or beneficiaries, many are likely to 'comply' 'voluntarily' with an agency's 'nonbinding' statement of its preferred policies.").(1) Whenever government attempts to achieve by indirection and coercion that which would be unconstitutional if pursued openly and pursuant to statutory processes, the protections of the Constitution and the rule of law are undermined. Cf. Writers Guild of Amer. v. American Broad. Co., 609 F.2d 355, 365 (9th Cir. 1979) ("[T]he use of ["jawboning"] techniques by the FCC presents serious issues involving the Constitution, the Communications Act, and the APA").


I do not think that the Commission should unqualifiedly promise, at this point in time, to adopt new EEO rules. At most, the Commission can consider whether to do so. There are many hurdles to overcome before the Commission can officially promulgate new rules, not the least of which is the question whether we possess statutory authority to regulate the employment practices of broadcasters at all. As the Court of Appeals observed, its opinion "undermined the proposition that there is any link between broad employment regulation and the Commission's avowed interest in broadcast diversity." Id. at 356. On the other hand, if the Commission resorts to the alternative interest of preventing discrimination in the broadcast industry as the basis for new regulations, there is substantial caselaw indicating that such an interest is not cognizable under the "public interest" standard. See id. (citing NAACP v. FPC, 425 U.S. 662 (1976)).

There also many constitutional issues that potentially remain. As an initial matter, if the government interest in "outreach" regulations is to promote "diversity of programming,"as the Commission has often claimed, then we would be well advised to first articulate with precision what we mean when we use that term. But, as the Court of Appeals noted, if we define that term in light of programming content, we implicate the limitations of the First Amendment. Id. at 354.(2) And if we define it in terms of sheer numerosity of independent owners, as is also sometimes done, then the race or gender of a particular independent owner would seem to be wholly irrelevant to the promotion of that goal.

Moreover, if the Commission were to rely on the diversity of programming theory, it would place itself in the difficult (if not distasteful) position of proving as a matter of social science that the color of a person's skin or the composition of an individual's chromosomes determines personal interests and beliefs. Evidence of this must be adduced even under intermediate, as opposed to strict, standards of judicial review. See, e.g., Lamprecht v. FCC, 958 F.2d 382 (1992) (ruling sex-based preferences unconstitutional because FCC failed to introduce evidence of connection between female ownership and "female programming"). Unless we can document this link to the satisfaction of a court of law, we cannot promise anything in the way of rules -- at least not legally sustainable ones.

How can we know the answers to such difficult questions before we even have a proposal before us? We have not yet issued a Notice of Proposed Rulemaking or even a Notice of Inquiry on the adoption of new EEO regulations. Precommitment to a particular result, so far in advance of any examination of the merits of any actual proposal, makes an empty gesture of the decisionmaking process. Because I cannot at this very early stage of consideration be certain of the answers to these questions -- particularly of the statutory authority issue -- I cannot commit to the ultimate adoption of EEO regulations. I can commit, however, to consider fairly these and any other issues and to hear all interested parties.

* * *

America has a great history but, tragically, parts of it are tainted by a sad legacy. Throughout the course of our history, many people have been denied equal protection of the law and suffered from invidious discrimination. Eradicating statutorily prohibited discrimination and providing equal protection under the laws have been great struggles as well as significant, if not complete, triumphs for America in the second half of the Twentieth Century. Our federal government must never return to, or even risk opening the door to a restoration of, a legal system in which individuals are either afforded or denied legal rights based on nothing other than who they are at birth. We at the Commission should have the absolute highest standards when it comes to matters that implicate the Equal Protection Clause. For that overarching reason, I intend to tread carefully in this area.

1. Of course, now that federal law no longer requires the maintenance of EEO programs, broadcasters who "voluntarily" comply with the invalidated regulations and who thus hire or promote employees based on race or gender do so at increased legal peril under Title VII.

2. Relatedly, if spectrum is no longer "scarce" and the communications sector contains a multitude of means for expression, then the legitimacy of the government interest in regulating broadcast speech is diminished.