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Statement of Commissioner Harold W. Furchtgott-Roth, Concurring in Part and Dissenting in Part

In re Applications of Radio Sun Group of Texas, Inc., For Renewal of Licenses of Stations KYKX-FM, Longview, Texas; KEAN(AM)/KEAN-FM, Abilene, Texas; and Radio SunGroup of Bryan/College Station, Inc., For Renewal of License of Station KKYS(FM), Bryan, Texas

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.

I.

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 73.2080(b) & (c), violate the equal protection component of the Fifth Amendment. Lutheran Church-Missouri 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 confirmed Article III judges, whose constitutional duty it is "to say what the law is." Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803).

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 included in the NAL. Compare Lutheran Church, 141 F.3d at 351-353 (rejecting argument that outreach rule regulates only recruiting and that its enforcement does not depend on numerical goals or statistical parity) with NAL at paras. 12, 16 (asserting that outreach rule governs only candidate pool and that Commission uses only "efforts-based" approach in evaluating compliance without relying on percentages or parity). In addition, the Commission applies the outreach provisions to the stations' records in exhaustive detail and in conclusion issues notices of liability for over $60,000 to the licensee under the sole authority of those subsections.(1) I believe that deference 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.

Furthermore, although the NAL temporarily suspends the forfeiture proceedings and the short-term renewal expiration date, this is insufficient to prevent injury to the licensee. 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 made by this NAL. See Meredith Corp. v. FCC, 809 F.2d 863, 868-869 (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 assumption that it will resume full-scale enforcement of the EEO rule if and when Lutheran 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 license." Lutheran Church, 141 F.3d at 349-350.(2) Third, the term of the license now in effect for KYKX-FM is ambiguous. The stated renewal is for a short term expiring August 1, 2001, NAL at para. 19, the August 1, 2001, expiration date of the renewal is then suspended, 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 KYKX-FM is granted, as it does for all the other full term renewals, it is not clear that this renewal is in fact for a full term.(3) If KYKX-FM'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.

Finally, 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 founded entirely upon this Commission's interpretation of the "public interest" standard, see Nondiscrimination Employment Practices of Broadcast Licensee, 13 FCC 2d 766 (1968).(4) The Court of Appeals, however, has questioned whether this standard provides an adequate 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 with the Fifth Amendment. Cf. United States v. Thirty-Seven Photographs, 402 U.S. 363, 369 (1971) (statutes should be construed to avoid, not to create, constitutional problems).(5) We should, in our discretion, decline to apply the EEO program requirements at least until we can be assured of their constitutionality.

II.

While 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 the future with respect to this litigation. Agency nonacquiescence may be a legitimate course of action in certain circumstances, see Davis & Pierce, Administrative Law Treatise, section 2.9, at 102-105 (3d ed. 1994), but the justification for such conduct dissipates when the case at issue presents a constitutional question, as here.

Administrative agencies are thought to have some expertise when construing statutes that Congress has charged them with administering. See Chevron v. Natural Resources Defense Council, 467 U.S. 837, 842-43 (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 courts. See Syracuse Peace Council v. FCC, 867 F.2d 654, 658-659 (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 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 domain which Congress has set aside exclusively for the administrative agency'") (quoting SEC v. Chenery Corp., 332 U.S. 194, 196 (1947)).

Moreover, 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 facilitate Supreme Court review. See Davis & Pierce at 105-106. Nor would adherence to the decision create a lack of national uniformity in federal regulation. Id. These two 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 D.C. Circuit. See 47 U.S.C. section 402(b). The only circuit court that ever could pass on 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").

III.

In light of the foregoing, my preferred course of action would be simply to stay our 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 real-world 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 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. As for the new owner, there will be time enough, if Lutheran Church is ultimately reversed, to review that owner's compliance with EEO regulations.(6)

Accordingly, 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 EEO rule at all.

* * *

In 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 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 and stands as a tribute to the American dream of opportunity for everyone. We should take no action that would undermine that great constitutional precept, as interpreted and applied by the judicial branch.



1. Moreover, the Commission errs in assuming that if the en banc court ruled the outreach provision 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, see Lutheran Church, 141 F.3d at 354, and intended to remand the case to the Commission in order to decide that issue, see id. at 356. This issue thus may remain open on a possible remand of the case by the en banc court. We would, of course, have to resolve that question before we could lift the suspension of sanctions.

2. 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.

3. 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.

4. Although Congress has prohibited the Commission from revising our EEO regulations for 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 provision speaks only of regulations governing television licensees or permitees and thus can provide no support whatsoever for EEO rules as applied to radio licensees, the subject of this item.

5. Notably, there are alternative, race-neutral means of furthering the public interest in not licensing broadcasters who violate the national policy against employment discrimination, the 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 anti-discrimination 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.

6. Again, however, our possible lack of statutory authority for the EEO rule may preclude such review. See supra note 1.