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February 25, 1998


In the Matter of Broadcast Equal Employment Opportunity Enforcement Policy As to Religious Broadcasters

I agree with the essential conclusion of this Order & Policy Statement, namely, that religious broadcasters should be permitted to establish religious belief or affiliation as a legitimate occupational qualification for all employees, and I therefore support its adoption. I write separately simply to highlight several important points that this item leaves unaddressed.

Who Is A "Religious Broadcaster"?

At this point in time, it is not entirely clear which broadcast licensees are even entitled to invoke the benefits of this Order & Policy Statement. If the meaning of the term "religious broadcaster" truly depends on "case-by-case analysis, based upon an evaluation of . . . characteristics" not conclusively described, see page 4 ("relevant characteristics will include, among other things . . .") (emphasis added), it would appear difficult, if not impossible, to know ex ante whether a particular licensee is covered by the policy -- at least until the Commission establishes helpful precedent on the definition of "religious broadcaster." And although we observe that the Equal Employment Opportunity Commission conducts a "similar" inquiry, id., we do not say whether the existing caselaw developed by that agency will in fact guide our decisionmaking.

Due to this potential ambiguity as to coverage, I fear that we may have merely shifted the uncertainty and attendant chilling effect surrounding the rights of religious broadcasters from the back end of our policy (the determination of jobs involving religious espousal) to the front (the determination whether a licensee is a religious broadcaster). Cf. Corporation of the Presiding Bishop v. Amos, 483 U.S. 327, 343-44 (1987) (Brennan, J., concurring) ("A case-by-case analysis for [religious and secular] activities . . . would both produce excessive government entanglement with religion and create the danger of chilling religious activity."). This remains to be seen.

Potential Inconsistency Between Exemption and Processing Scheme

In the near future, perhaps when we apply this new rule in the context of a specific licensing proceeding, I would hope that we also come to grips with other practical problems that implementation of the item could present. For instance, although the Order & Policy Statement asserts that religious broadcasters cannot discriminate on the basis of race, color, national origin, or gender "from among those who share their religious affiliation or belief," page 4, our current Equal Employment Opportunity (EEO) processing scheme explicitly requires statistical comparison of the racial and gender composition of a broadcaster's workforce to the general racial and gender makeup of the entire local labor market, without regard to religious affiliation. See Streamlining Broadcast EEO Rules and Policies (Order and Notice of Proposed Rulemaking), 11 FCC Rcd 5154, 5159-61 (1996).

If the ability to choose employees who share a religious broadcaster's faith is to be exercised without penalty for any unintentional disparate impact that such exercise might have on other groups, cf. In re Applications of the Lutheran Church/Missouri Synod (Memorandum Opinion and Order), 12 FCC Rcd 2152, 2153 (1997), the Commission should evaluate that broadcaster's equal employment efforts in light of the labor pool of persons with the same religious affiliation as the broadcaster. Procedural adjustments thus may be necessary in order to eliminate this potential inconsistency between our new approach toward religious broadcasters and extant EEO procedures.

Processing By Legal Standards Rather Than "Guidelines"

The above-described modification of our renewal procedures should be clearly established in a legally enforceable manner. Unfortunately, the Commission's current processing "guidelines," as they have been termed, are not set forth in any duly-promulgated regulations. Rather, they are merely the product of agency custom -- a situation that can all too easily lead to inconsistent and possibly arbitrary application -- and were apparently developed without notice or comment.

Although we thus would be well advised to codify the entirety of our enforcement guidelines in published and accessible rules so that all broadcasters could enjoy greater certainty about the standards by which their EEO efforts will be measured, only the question of religious broadcasters is posed here. And with respect to those broadcasters, we ought at least to ensure that if the above-described adjustment to our EEO review is made, it is rooted in a rule of law.

Legal Status of Changes in EEO Enforcement

To all of this, there is a complicating factor: section 334 of the Communications Act. That provision states:

"[T]he Commission shall not revise . . . 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; or . . . the forms used by such licensees and permittees to report pertinent employment data to the Commission."

47 U.S.C. section 334(a)(1)-(2). In light of section 334, the Commission noted at the outset of this proceeding that any changes in our EEO system that "require the revision of EEO regulations and/or forms for television stations would require statutory change" and further observed "that statutory change would not be required for the proposals if they only applied to radio stations." Streamlining Broadcast EEO Rules and Policies, 11 F.C.C. Rcd. at 5167. By its plain terms and as the Commission has construed it, then, section 334 has no applicability to regulatory changes made with respect to radio stations.(1) Religious broadcasters who operate those kinds of stations can thus be sure that they are legally entitled to use religious affiliation as a bona fide occupational qualification for all station jobs upon issuance of this item.(2)

Whether religious broadcasters in the television business can do so, however, is far murkier. We have made clear that, due to section 334, this item is only a statement of policy as to religious television stations. See pages 2-3 ("This action should be considered . . . [,] in light of the limitations imposed by Section 334 of the Communications Act, a non-binding policy statement for television licensees and permittees."). Policy statements, as the U.S. Court of Appeals for the D.C. Circuit has repeatedly explained, have no force of law whatsoever, absent independent rulemaking or adjudication. See Telecommunications Research and Action Center v. FCC, 800 F.2d 1181, 1186 (1986) (policy statement is "'neither a rule nor a precedent. . . . [L]ike a press release, [it] presages an upcoming rulemaking or announces the course which the agency intends to follow in future adjudications.'") (quoting Pacific Gas & Electric Co. v. FPC, 506 F.2d 33, 38 (D.C. Cir. 1974)); American Bus Association v. ICC, 627 F.2d 525, 529 (D.C. Cir. 1980) (policy statement "acts [only] prospectively" and "genuinely leaves the agency and its decision-makers free to exercise discretion.").

Accordingly, today's action cannot, by itself, create any enforceable substantive right in religious television broadcasters to be free from application of the EEO religious anti-discrimination provision, nor can it preclude the Commission from enforcing that provision against such broadcasters. Until we either embody the "policy" announced today in an official agency rule or adhere to it in future adjudication, the legitimate interests of all religious broadcasters that we recognize today will not be safeguarded with any degree of real certainty. Short of such action, this statement is but a promise that can be broken tomorrow.

On the other hand, further agency action to create a binding standard for religious television broadcasters might arguably run afoul of section 334. That is, subsequent adherence to this policy statement by the Commission in matters involving television licensees could theoretically raise questions about the propriety of such action if application of the policy could be said to constitute a "revision of EEO regulations" within the meaning of section 334. And if that were the case, Congressional action might be necessary, as suggested in the Notice of Proposed Rulemaking, and our hands might be tied; no matter how laudable the goal of establishing an enforceable right for religious television broadcasters to hire based on religious affiliation, the Commission of course would not be free to violate the law in pursuit of that end. While I express no final views on the impact of section 334 on our ability to take action beyond mere policy statements in this context, I simply note the possibility that we could find ourselves on the horns of a regulatory dilemma as far as religious broadcasters who operate television, as opposed to radio, stations are concerned.

Religious Freedom

I note one last, and grave, difficulty with respect to enforcement of the EEO rules as against religious broadcasters. If and when an individual claims that they are a member of a certain religious faith but were nevertheless denied a job based on impermissible factors, and the religious broadcaster in turn asserts that the person is not in fact a member of their religious group, it is imperative that the Commission not involve itself in the determination of who is and who is not a bona fide member of a particular religious organization. Even under the umbrella of one religious denomination, there may be factions that disagree about the tenets of that denominational faith; the history of religion is replete with examples of such schisms. These are intensely personal debates into which government ought not inject itself. If the factual question of who is a "true" member of a particular religious group arises in the context of an EEO proceeding, government should defer to the considered judgment of the particular group with which the broadcaster is affiliated.

Indeed, the constitutional principles implicitly acknowledged today teach as much. The First Amendment protects the ability of religious entities "to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine," Kedroff v. St. Nicholas Cathedral of the Russian Orthodox Church in North America, 344 U.S. 94, 116 (1952), and "[t]here can be no clearer example of an intrusion into the internal structure or affairs of an association than a regulation that forces the group to accept members it does not desire," Roberts v. United States Jaycees, 468 U.S. 609, 623 (1984). In implementing our EEO rules, we must take care not to infringe the rights of religious organizations to self-identification, or the associational rights of persons belonging to such organizations, by launching governmental inquiries into whether a person shares the same faith as others who believe that he does not.

Conclusion: A Step In The Right Direction

Notwithstanding the above-described concerns regarding future implementation of this new EEO position, I support this item. I do so because I believe that it is a step in the legally right direction for our EEO policies concerning religious broadcasters. By no means, however, does it represent the end of the matter. Many difficult issues -- including ones deriving from the non-binding nature of this action with respect to television licensees -- lie ahead.

1. For this reason, the suggestions that I make above such as codification of our processing guidelines, if limited to radio stations, would not seem barred by section 334. As for my proposals as applied to television stations, legislative action may be required under that statute, as explained below.

2. Or, more accurately, they can be sure of their ability to do so 30 days after publication of this item in the Federal Register or upon receipt by Congress of a report under the Contract with America Advancement Act, whichever is sooner. See page 6.