| Text | WordPerfect | Statement of Chairman Kennard |

In The

Oral Argument Held

) Decided April 14, 1998

Appellant-Petitioner         )

                     v. )       Case No. 97-1116


Appellee-Respondents        )



The Federal Communications Commission and the United States respectfully petition the Court for rehearing of the panel decision of April 14, 1998, in this case and suggest rehearing in banc.

Concise Statement of The Issues and Their Importance

Appellant, the Lutheran Church--Missouri Synod, operates two radio stations. For many positions at the stations, appellant recruited and hired only seminarians or their spouses. This denomination's membership is about two per cent African-American, and the NAACP challenged the stations' license renewal applications on the ground that the stations' practices had not complied with the FCC's requirements for minority recruiting. The Commission initially concluded, pursuant to its long-standing policy upheld by this Court in King's Garden, Inc. v. FCC, 498 F.2d 51 (D.C. Cir. 1974), that the Church had erred by giving preferential treatment to seminarians and their spouses for positions that did not directly affect the stations' programming, and this case ensued. However, in a broad rule making proceeding that had been initiated in 1996 to streamline the Commission's EEO rule, the Commission adopted an order while this case was pending that changed its King's Garden policy: the Commission issued a binding order (incorrectly termed a mere "policy statement" by the panel) permitting radio stations owned by religious groups to favor members of their religious group for all positions at the station. Having changed position on the central issue presented by the case, the Commission accordingly sought a remand.

The panel denied the request for a remand even though the Commission had made clear that, on account of its change of course, it intended to grant appellant all the relief that the Court properly could have provided it on this issue. The panel also failed to resolve a statutory challenge to the Commission's action, brought pursuant to the Religious Freedom Restoration Act of 1993, 42 U.S.C. 2000bb-1 ("RFRA"), which could have provided the Church complete relief on the EEO issue. And the panel declined to address appellant's argument that the Supreme Court's decision in Corporation of the Presiding Bishop v. Amos, 483 U.S. 327 (1987), showed that it was entitled to give preferential treatment to Lutherans. The panel instead, contrary to all canons of judicial restraint, decided the case on the broadest constitutional ground available: the equal protection argument made in four paragraphs at the end of appellant's brief. The panel reviewed the Commission's three-decades-old EEO rule, 47 C.F.R. 73.2080, concluded that the rule was not race-neutral and thus triggered strict scrutiny, and struck down the EEO program requirements of the EEO rule under the equal protection component of the Fifth Amendment.

This improper exercise of judicial authority resulted in a decision in which the court erroneously held the EEO rule to be unconstitutional. The panel improperly held that the FCC's EEO rule, which requires only that broadcast licensees engage in recruitment and outreach efforts to reach minorities and women, must be justified under strict scrutiny because it focuses the FCC's inquiry by comparing a station's workforce to the qualified labor pool, and therefore might pressure employers to hire by race to avoid FCC review. However, contrary to the panel's holding, the FCC's rule clearly does not require application of strict scrutiny because it does not compel licensees to take race-based action. Moreover, this decision erroneously ignores the well established role of statistics in the enforcement of statutes prohibiting discrimination by employers. This case, as the FCC requested, should now be remanded to the FCC for full resolution of the Church's legal challenges.

The panel decision should be vacated in part and this case should be remanded to the FCC for it to vacate the orders on appeal as it proposed in its remand motion.(1)


Regulatory Framework. For nearly three decades, the FCC has required broadcast licensees to refrain from employment discrimination, and to establish, maintain, and carry out an EEO program reflecting positive and continuing efforts to assure equal employment opportunity without regard to race, religion or sex in station employment.(2) The rule does not require licensees to create a racially-balanced applicant pool, and does not call for any race-based hiring. The rule is intended to ensure that broadcast licensees' recruitment and outreach efforts and advertisement of job opportunities include efforts to reach minorities and women, thereby creating an inclusive applicant pool from which they can make employment decisions on a nondiscriminatory basis. See generally Streamlining Broadcast EEO Rule and Policies, 11 FCC Rcd 5154 (1996).

In order to accommodate stations licensed to religious broadcasters, the FCC in 1972, in the "King's Garden" ruling,(3) allowed those stations to establish a religious qualification for employment positions at their stations that involved the espousal of a religious organization's philosophy on its broadcast station. Prior to the panel's decision in this case, the Commission expanded that exemption from the prohibition against religious discrimination by adoption of an Order and Policy Statement, which was binding with respect to radio station licensees, permitting those licensees to establish religious affiliation as a job qualification for all positions at their stations. See Order and Policy Statement, 13 FCC Rcd 6322 (1998), petition for reconsid. pending.

FCC Action On The Church's License Renewal Applications. In this case, the FCC designated the Church's license renewal applications for two Missouri radio stations for hearing in 1994, and specified as an issue whether the licensee had complied with the requirements of the EEO rule. Hearing Designation Order, 9 FCC Rcd 914 (1994) (J.A. 90). The Church argued that it was exempt from the EEO rule pursuant to the Supreme Court's holding in Amos, 483 U.S. 327, and that enforcing the rule against the Church violated the Free Exercise and Establishment Clauses of the First Amendment and the RFRA. The presiding Administrative Law Judge (ALJ) found that the Church's stations had violated the FCC's EEO rule by improperly giving preferential hiring treatment to individuals with knowledge of Lutheran doctrine and to active members of Lutheran congregations for positions that were not reasonably connected with espousal of the Church's religious views, contrary to King's Garden. The ALJ concluded that the Church's overall outreach and recruitment efforts during the last part of the license term were not in compliance with the EEO rule, and imposed EEO reporting conditions and a $50,000 fine for misrepresentation and lack of candor in some of its submissions to the FCC. Initial Decision, 10 FCC Rcd 9880, 9907-09, 9911-12, 9916-17 (1995) (J.A. 72-74, 76-77, 81-82). The Review Board affirmed. Board Decision, 11 FCC Rcd 5275, 5277, 5280-81 (1996) (J.A. 39, 41, 43A-43B).

On review, the full Commission held that the EEO rule did not violate the Church's constitutional right to religious freedom, and that King's Garden was not effectively overturned by the Supreme Court's decision in Amos. The FCC also held that the EEO rule did not conflict with the RFRA, and reduced the forfeiture to $25,000.

The FCC also held that the EEO rule did not violate the equal protection component of the Fifth Amendment under Adarand Constructors, Inc. v. Peña, 515 U.S. 200, 115 S. Ct. 2097 (1995). The FCC explained that the recruitment and outreach provisions of its EEO rule do not require that any person be hired or given a hiring preference based on race, but rather "only requires that licensees make efforts to recruit minority and women applicants so that they will be assured access to the hiring process." Commission Order, 12 FCC Rcd 2152, 2159 13 (1997) (J.A. 30).

FCC Modification of EEO Requirements for Religious Broadcasters. In February 1998, the FCC adopted an Order and Policy Statement changing the EEO rule for religious broadcasters. The FCC modified its King's Garden approach, and revised the EEO rule to "permit religious broadcasters to establish religious belief or affiliation as a job qualification for all station employees." Order and Policy Statement, 13 FCC Rcd at 6323 3. The FCC emphasized that this action was "binding for radio licensees and permittees," such as the Lutheran Church, but constituted a non-binding policy statement for television licensees and permittees in light of restrictions imposed in the Communications Act. Id.(4)

Following adoption of the Order and Policy Statement, the FCC moved for partial remand of the record in this case, stating that following the granting of such motion the agency intended to "(1) vacate those portions of the Memorandum Opinion and Order, the Initial Decision of the [ALJ] and the Decision of the Review Board that relate to the EEO issue designated for hearing in this proceeding, and (2) unconditionally grant[] the Church's applications for renewal ...." FCC Motion for Partial Remand at 1 (March 5, 1998). The FCC made clear that "[t]he result of the vacation described above would be that the Church would not be subject to any sanction on account of the EEO issue, and the prior, vacated findings of a violation could not be used against the Church in any manner." Id.

The Panel Decision. In an April 14, 1998 decision, a panel of this Court reversed, holding that the EEO program requirements of the FCC's EEO rule violated the equal protection component of the Fifth Amendment. At the outset, the panel rejected the FCC's motion for remand to permit it to vacate its decision with respect to the Church's compliance with the EEO rule based on the agency's recent conclusion that religious broadcasters should be permitted to establish religious belief or affiliation as a job qualification for all positions at their radio stations. The panel stated its view that this new exemption "does not bind the Commission to a result in any particular case" and was merely a "ploy" in order "to avoid judicial review." Slip op. at 10. Having thus determined that it was necessary to proceed to a judicial determination of the Church's right to relief, the panel did not address the Church's principal claim for relief, which was based on RFRA and the First Amendment. The panel instead proceeded immediately to take up the Church's subsidiary argument based on Adarand.

The panel held that the FCC's EEO rule requires race-conscious decision-making and is thus subject to strict scrutiny. The panel found that the FCC's EEO rule causes stations to "grant some degree of preference to minorities in hiring," and held that the "entire [regulatory] scheme is built on the notion that stations should aspire to a workforce that attains, or at least approaches, proportional representation." Id. at 14. The panel stated that, by evaluating a licensee's employment profile against relevant labor force data, "[t]he regulations pressure stations to maintain a workforce that mirrors the racial breakdown of their `metropolitan statistical area,'" and therefore to "engage in race-conscious hiring." Id. at 15, 16. The panel also held that the FCC's basis for its EEO program, fostering "diverse programming," is insufficient to satisfy the compelling interest standard required by Adarand, and that the regulation is not narrowly tailored. Id. at 19-23. The panel vacated the lack of candor determination, and the $25,000 forfeiture. Id. at 24. The panel remanded to the FCC the issue of the agency's authority to continue to have an employment nondiscrimination rule. Id.


The Panel Unnecessarily Reached And

Improperly Decided A Broad Constitutional Question

1. As the Supreme Court and this Court have pointed out on numerous occasions, courts should not decide constitutional questions unnecessarily. See, e.g., New York City Transit Auth. v. Beazer, 440 U.S. 568, 582 (1979) ("If there is one doctrine more deeply rooted than any other in the process of Constitutional adjudication, it is that we ought not pass on questions of constitutionality unless such adjudication is unavoidable."); Karriem v. Barry, 743 F.2d 30, 38-39 (D.C. Cir. 1984) ("[I]t is the general policy of the federal courts to avoid addressing broad constitutional issues unless their resolution is imperative in the context of the case at hand."). In this case there are two possibilities for affording complete relief to the only party whose appeal is before the Court, without the necessity for reaching the broad equal protection questions decided by the panel. The panel passed by one possibility altogether, i.e., the Church's RFRA and Free Exercise challenges to the EEO rule, and seriously erred when it rejected the other possibility, i.e., the FCC's request for a remand. The result is a decision based on the broadest constitutional ground possible in violation of this "`fundamental rule of judicial restraint.'" United States v. Waksberg, 112 F.3d 1225, 1227 (D.C. Cir. 1997).

First, the panel improperly denied the FCC's motion to remand the record. The panel erred significantly when it concluded that the "post-argument `policy statement,' ... does not bind the Commission to a result in any particular case." Slip op. at 9. The Order and Policy Statement, adopted in the context of an ongoing notice and comment rule making proceeding, was not merely a "policy statement," but was also an "order" adopting a change to the FCC's enforcement of the EEO rule that was "binding" with respect to radio stations. 13 FCC Rcd at 6323, 6327 3,14.(5) This factual error by a panel of this Court was the principal basis on which the panel denied the FCC's motion for remand. The Order and Policy Statement is an order that binds the agency in all radio licensing cases. It represents a fundamental change in the FCC's rules as a result of independent rulemaking. In fact, the change embodied in the February Order and Policy Statement provided all the relief sought by the National Religious Broadcasters in the rule making proceeding.

Moreover, the motion for remand itself expressly stated that "the Commission has informed counsel that it intends to adopt an order on remand (1) vacating those portions of the Memorandum Opinion and Order, the Initial Decision of the [ALJ] and the Decision of the Review Board that relate to the EEO issue designated for hearing in this proceeding, and (2) unconditionally granting the Church's applications for renewal of its broadcast licenses at issue here."(6) Motion at 1. The FCC could have issued an order to that effect, but did not do so only in order to avoid any "unseemly conflict" that could arise from such action while the Church's appeal was pending in this Court. Wrather-Alvarez Broadcasting, Inc. v. FCC, 248 F.2d 646, 649 (D.C.Cir. 1957). Were this Court to remand the case to the FCC, it would enter an order granting the Lutheran Church complete relief on the EEO matter, thus mooting the EEO issue.(7)

Constitutional questions aside, it is well established that no party has a right to insist that a federal court "`decide questions that cannot affect the rights of litigants in the case before them.'" Preiser v. Newkirk, 422 U.S. 395, 401 (1975), quoting North Carolina v. Rice, 404 U.S. 244, 246 (1971); see also AT&T Co. v. FCC, 602 F.2d 401, 407-09 (D.C. Cir. 1979). The FCC's action in the Order and Policy Statement modifying King's Garden, and its statements in the remand motion that the FCC, on remand, would vacate those portions of the agency and staff decisions involved in this appeal relating to the EEO issue and grant the Church an unconditional renewal of its two licenses, mooted any issue raised by the Church in this case, save the challenge to the forfeiture imposed on the Church by the FCC for lack of candor. Thus, even if no constitutional questions had been present, the panel should have granted the FCC's motion.

The panel may have been of the view that the motion for remand should be denied if for no other reason than a need to assure the Church in this case that it could not be required by the FCC in the future to engage in special outreach efforts towards minority Lutherans. See slip op. at 9. But that was not the issue here. In this case, the FCC faulted the Church's radio stations for giving preferential treatment to Lutherans, not for discriminating against minority Lutherans.(8) In any event, accepting for purposes of argument that this would be a sufficient basis for denying the requested remand, that still would not excuse the panel's failure to address first the Church's statutory challenge to the EEO rule, based on the RFRA, before it considered any constitutional questions. The Church's claim in this regard appears to be that it is an unjustified "substantial burden" under the RFRA on the Church's religious liberty for the FCC to apply its EEO rule to stations licensed to religious organizations. See Church Br. at 22-28. If the panel had addressed that issue and decided in the Church's favor, it also would have given the Church complete relief on the EEO issue and made it unnecessary to reach any constitutional questions.(9)

Finally, even if the panel is correct in its apparent view that the consideration of the Church's statutory claim was "intertwined" with the Church's First Amendment claims, principles of judicial restraint counsel here in favor of deciding the First Amendment claims before the Fifth Amendment claim. A decision in the Church's favor on its First Amendment claims could have provided the Church with complete relief on the EEO issue without requiring the panel to render a constitutional holding as to the validity of the FCC's EEO rule after Adarand as applied to all licensees, whether or not they are religious organizations. The panel's statements that the equal protection argument was somehow a "logically anterior claim" that should be taken up first and that it would be "imprudent to decide the Church's RFRA and free exercise challenges" are inexplicable. Slip op. at 10, 23. The Church obviously did not view it that way, devoting the first fifteen pages of the argument in its brief to its religious liberty claims, before devoting four paragraphs to its equal protection argument. The Church made clear that it sought to challenge the constitutionality of the EEO rule only insofar as the rule failed to provide "a religious exemption modeled on Section 702" of the Civil Rights Act, i.e., an exemption that would permit the Church to use religious belief or affiliation as a job qualification for all employees at its stations. Church's Br. at 35. The Church's position was that the rule violated the equal protection component of the Fifth Amendment if the rule imposed on the Church "specific employment steps that are based on racial classifications insofar as those steps impede [the Church's] ability to use religious preferences in hiring." Id. (emphasis added).

Recently, the Executive Director of the Lutheran Church-Missouri Synod wrote that "it is important to note that challenging affirmative action per se was not the reason why the Synod appealed the case" and that the "crucial, central issue" was that "[b]oth the First Amendment and the Religious Freedom Restoration Act ... protect the ability of churches to define and conduct their ministries without undue government interference." Why Lutherans Took On The FCC, Wall Street Journal, A23, May 4, 1998. The panel in this case had numerous alternatives that would have avoided a judicial decision on the broadest possible constitutional issue present in this case, but ignored or rejected without sufficient explanation all of those alternatives before instead issuing a constitutional pronouncement even broader than that which the Church had sought. Rehearing should be granted at least for the purpose of addressing the likelihood that this case can be decided on more narrow grounds and to consider whether the case should simply have been remanded to FCC to allow it to dispose fully of the Church's claims regarding application of the EEO rule without the necessity of judicial resolution of broad constitutional issues.

2. The panel's overreaching resulted in a decision that erroneously held the FCC's EEO rule unconstitutional. The panel stated that it applied strict scrutiny because the EEO rule's comparison of a station's workforce with that of the relevant labor area effectively encourages employers to engage in racial hiring. Slip op. at 16-18. There is no evidence to support the conclusion that any broadcast licensee has engaged in racial hiring to avoid FCC scrutiny, particularly where, as here, the FCC has clearly stated that the rule requires only that stations engage in outreach to possible sources of minority job referrals. And even if there were evidence that employers are engaging in such race-based hiring, the rule does not require an employer to engage in such action. Application of strict scrutiny is therefore inappropriate.

The comparison of a station's hiring with the appropriate labor pool is a proper and reasonable way for a federal agency to focus efforts to enforce equal employment obligations on those employers who may arbitrarily be excluding minority applicants. Indeed, the FCC's EEO rule, which was rewritten in 1987 so as not to impose or permit employment quotas,(10) permits the FCC to determine whether any of its licensees are arbitrarily excluding minorities by failing to notify minorities of job opportunities. Where the percentage of minorities in part of an employer's workforce is considerably below the percentage of minorities in the labor pool, the under-representation of minorities might indicate that the employer is failing to attract qualified minority applicants, or otherwise discouraging minority applicants.

The EEO rule does not require the station to adopt racial goals or achieve proportional representation in its workforce. See Florida State Conf. of the NAACP v. FCC, 24 F.3d 271, 272 (D.C. Cir. 1994) (FCC's "EEO program does not ... purport to require a licensee to achieve numerical goals of minority employment"); Broadcast EEO Report and Order, 2 FCC Rcd at 3974 50 (EEO rule "should not be interpreted to allow the use of the [processing] guidelines as either quotas or a `safe harbor.'"). The FCC "do[es] not require that the proportion of minorities or women employed equal their presence in the labor force or even that any percentage of an entity's staff be composed of minorities or women in order for an employer to satisfy the EEO requirements. Streamlining EEO Rule, 11 FCC Rcd at 5158. In reviewing a station's EEO efforts, the Commission focuses only on a station's "consistent efforts to contact sources likely to refer qualified female and minority applicants," id., and finds stations in compliance with the EEO rule as long as they engage in efforts to include minorities and women in the applicant pool, regardless of the racial results of hiring decisions. Nelson Enterprises, Inc., 12 FCC Rcd 5234, 5237 9 (1997).

Nonetheless, the panel found that this regulation effectively "pressured" employers to engage in racial hiring and so should be subjected to strict scrutiny. The panel found that the FCC's use of statistical data as one way to show the possible need for further scrutiny "pressure[s] stations to maintain a workforce that mirrors the racial breakdown of the `metropolitan statistical area' ... [and] engage in race-conscious hiring." Slip op. at 15-16.

There is no predicate in this case for the application of strict scrutiny to this regulation. The panel's finding that employers are "pressured" to make decisions based on race is totally without evidentiary support. There is no evidence in the record to show that the Church's stations, the only employer involved in this action, or any other broadcast stations, have engaged in racial hiring to avoid further FCC scrutiny. There is, therefore, no evidence in the record to support the panel's determination that the EEO rule "pressures" stations to hire based on race.

Moreover, even if some employers decide to engage in racial hiring to avoid FCC or other agency scrutiny, there is no legal basis for the panel to have held that that action by an employer unilaterally elevates the standard of review applied to the FCC regulation. Because the FCC's EEO rule requires only that broadcast employers engage in outreach to probable sources for minority referrals, it does not require an employer to engage in race-based decision-making to comply with FCC requirements. The regulation does not require any race-based decision-making; it requires only outreach efforts that do not affect individual employment decisions.(11) Indeed, nothing the EEO rule requires is subject to strict scrutiny. In Adarand, the Supreme Court stated that government action that "treats any person unequally because of his or her race," is subject to strict scrutiny. 515 U.S. at 229-30. The FCC rule, however, "does [not] require that any person be hired or be given a hiring preference based on race." Commission Order, 12 FCC Rcd at 2159 13 (J.A. 30).(12)

The FCC's rule does not preclude licensees from continuing their existing efforts at soliciting applicants for job openings, as long as the station also solicits organizations and entities likely to refer minority and female candidates for consideration. The FCC does not impose any hiring quotas or requirements, and, importantly, does not sanction licensees for failing to reach any specific numerical level of minority hiring.(13) If an employer chooses to engage in racial hiring in an attempt to avoid FCC scrutiny, that would not provide a legitimate basis for this Court to elevate the standard of review to be applied to agency action that uses a numerical comparison to focus enforcement efforts.

It is well-established that "statistics can be an important source of proof in employment discrimination cases, since 'absent explanation, it is ordinarily to be expected that nondiscriminatory hiring practices will in time result in a workforce more or less representative of the racial and ethnic composition of the population in the community from which employees are hired'" Hazelwood School Dist. v. United States, 433 U.S. 299 (1977), quoting Teamsters v. United States, 431 U.S. 324, 340 n.20 (1977). See also Krodel v. Young, 748 F.2d 701, 709 (D.C. Cir. 1984), cert. denied, 474 U.S. 817 (1985). Statistics can be relied on to establish a prima facie case of discrimination, and they are an important and commonly used tool in determining whether further investigation to uncover discrimination is appropriate.

In sum, the panel has exceeded the bounds of properly limited judicial review by reaching out to decide a broad constitutional question after the FCC requested that the case be remanded to it because subsequent changes in FCC policy, along with the FCC's commitment to vacate the orders on appeal, had effectively mooted the controversy over application of the EEO rule to the Church. The panel's decision has resulted in a constitutional decision that is not only erroneous, but was unnecessary in the circumstances of this case.


The petition should be granted, and the case should be reheard in banc.

Respectfully submitted,

Bill Lann Lee Christopher J. Wright

Acting Assistant Attorney General General Counsel

Mark L. Gross Daniel M. Armstrong

Attorney Associate General Counsel

Lisa Wilson Edwards C. Grey Pash, Jr.

Attorney Counsel

United States Department Federal Communications Commission

of Justice Washington, D.C. 20554

Washington, D.C. 20035-6078 (202) 418-1740

FAX (202) 418-2819

May 29, 1998

1. 1 Respondents do not seek rehearing of that portion of the panel's decision vacating the FCC's lack of candor determination and forfeiture. See slip op. at 24.

2. 2 See 47 C.F.R. 73.2080; Nondiscrimination in Employment Practices, 13 F.C.C.2d 766 (1968); Nondiscrimination in Employment Practices, 23 F.C.C.2d 430 (1970); Nondiscrimination in Employment Practices, 60 F.C.C.2d 226 (1976).

3. 3 Complaint by Anderson, 34 F.C.C.2d 937, 938 (1972), aff'd, King's Garden, Inc., 38 F.C.C.2d 339 (1972), aff'd, King's Garden, Inc. v. FCC, 498 F.2d 51 (D.C. Cir.), cert. denied, 419 U.S. 996 (1974).

4. 4 Section 334 of the Communications Act, 47 U.S.C. 334, prohibits the FCC "from revising `the regulations concerning equal employment opportunity as in effect on September 1, 1992 (47 C.F.R. 73.2080) as such regulations apply to television broadcast station licensees and permittees,' as well as the EEO forms used by television licensees and permittees, except for necessary `nonsubstantive technical or clerical revisions....'" Order and Policy Statement at n.11.

5. 5 Commissioner Furchtgott-Roth's separate statement (13 FCC Rcd at 6329) to the effect that the Order and Policy Statement was non-binding was directed to the effect on television stations, which are not involved in this case and as to which, unlike its applicability to radio stations, the Order and Policy Statement is non-binding. See n. 4 above.

6. 6 Contrary to the panel's possible understanding of counsel's letter informing the Court about Commissioner Furchtgott-Roth's view that the FCC should not commit itself in its motion for remand (slip op. at 8, 9), Commissioner Furchtgott-Roth was speaking only for himself in disagreement on this point with the other four Commissioners.

7. 7 The proposed order on remand reflected the recent acceptance by the Commission of the argument, made both by the Church with respect to its particular stations at issue in this adjudicatory proceeding and by other licensees in the rulemaking proceeding, that religious organizations should be allowed to make religious belief a qualification for all job positions at their broadcast stations. Although there is a petition for reconsideration pending with respect to the Order and Policy Statement in the rulemaking, none of the arguments raised therein dispute that fundamental proposition concerning employment decisions at broadcast stations licensed to religious organizations. The pendency of that petition thus does not affect the commitment to this Court by a majority of the Commission concerning the decision to be made on remand as set forth in the motion for remand.

8. 8 To the extent that the panel was concerned that the FCC on remand in this proceeding might choose to fault the Church for a past failure to engage in sufficient outreach under the FCC's EEO rules towards minority Lutherans (e.g. slip op. at 9), the commitment of the majority of the FCC to grant the Church an unconditional renewal and the statement in the motion that the result "would be that the Church would not be subject to any sanction on account of the EEO issue, and the prior vacated findings of a violation could not be used against the Church in any manner" (Motion at 1), should have dispelled any such concern.

9. 9 The panel acknowledged that some "might suggest that we decide the RFRA question first," but found that "order of analysis peculiar" given the FCC's "possible shift on King's Garden." Slip op. at 10 n.7. We respectfully suggest that the panel cannot have it both ways. If the FCC's shift on King's Garden is relevant, the FCC's motion for remand should be granted. Having been denied, the FCC's shift on King's Garden should not thereafter be used as a basis for reversing the FCC in this case on the broadest possible constitutional ground.

10. 10See Broadcast EEO Report and Order, 2 FCC Rcd 3967 (1987).

11. 11 The exception to this is the provision that permits religious broadcasters like the Church to discriminate in favor of applicants who share their religious beliefs.

12. 12 See, e.g., Benchmark Radio, 11 FCC Rcd 8547, 8548-49 3 (1996); WDOD of Chattanooga, 12 FCC Rcd 6399, 6401-02 8-12 (1997); Davidson County Broadcasting Co., 12 FCC Rcd 3375, 3377-78 8-13 (1997); Tidewater Radio, 11 FCC Rcd 7814, 7814-16 3-8 (1996), reconsid. denied, FCC 97-121 (Aug. 5, 1997).

13. 13 See Broadcast EEO Report & Order, 2 FCC Rcd at 3967; Louisiana Broadcast Stations, 7 FCC Rcd 1503, 1505 (1992)(holding that station that did not hire minorities nevertheless complied with EEO rule based on recruitment efforts); Miami Broadcast Stations, 5 FCC Rcd 4893, 4894 (1990) (stating that "failing to meet the Commission's processing guidelines does not in and of itself demonstrate the inadequacy of a licensee's EEO efforts. ...[t]he Commission instead focuses on a station's overall efforts to recruit, hire and promote minorities").