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Concurring Statement of Commissioner Harold W. Furchtgott-Roth

In the Matter of Review of the Commission's Broadcast and Cable EEO Rules and Policies and Termination of the EEO Streamlining Proceeding, MM Docket No. 98-204, MM Docket No. 96-16

I do not oppose the issuance of a Notice of Proposed Rulemaking (NPRM) to seek comment on, among other things, the statutory authority for, and the constitutional feasibility of, employment regulations for broadcasters. For one thing, the D.C. Circuit in Lutheran Church expressly contemplated that we take up the question of statutory authority for our non-discrimination rule. I cannot at this time, however, support the unnecessarily broad conclusions and the underlying reasoning contained in this item, or the expansive discussion of social policy set forth in the introduction.

As I have explained in other contexts, there are many hurdles to clear on this legal track before we can adopt sound EEO rules. See In the Matter of Suspension of Requirement for Filing of Broadcast Station Annual Employment Reports and Program Reports (released September 29, 1998). Among them is the necessity of showing a real, not just presumed, connection between the race or gender of station employees and the "viewpoint" that is ultimately expressed on the air. Nothing in this NPRM suggests that we have any such record, and yet the NPRM concludes that the contemplated rules would indeed further the goal of creating "varying perspectives," supra at page 2, on the air.

In addition, while it is true that the holding in Lutheran Church did not address and thus does not prohibit pure recruiting rules, it is not necessarily settled law that such rules are wholly free of Equal Protection implications, as the NPRM argues. See supra at para. 21. At least arguably, a person is "treated unequally" within the meaning of Adarand if they are not recruited for a job because of their race, while others are. Certainly, the Supreme Court has never suggested that the meaning of "race-based decisionmaking" changes depending on which particular stage of the employment process -- firing, retirement, promotion, hiring, interviewing, applying, or recruiting -- is at issue. I intend carefully to review the cases in this area before reaching any conclusions.

Furthermore, at this juncture -- the giving of notice of a proposed rulemaking -- I would not reach the tentative conclusions that we have statutory authority to issue either an anti-discrimination or a recruiting rule. See supra at paras. 25, 31. To my mind, this is an open question, and one on which I will be very interested in receiving comment; indeed, I encourage commenters to address this question.(1) I thus reserve judgment on this question, as well as the validity of the arguments pressed in support of authority in this NPRM, until we issue a final order.

Finally, I would not reach the tentative conclusion that, notwithstanding the decision in Lutheran Church, the Commission may continue to require the filing of race and gender employment statistics. See supra at para. 47. I likewise withhold judgment on that issue.

1. To the extent one could conclude that the Commission possesses statutory jurisdiction to adopt employment regulations, I would be interested in receiving comment on how such jurisdiction could be logically limited to broadcasters per se, as opposed to applying to all classes of Commission licensees.