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Re: Report and Order - In the Matter of Review of the Commission's Broadcast and Cable Equal Employment Opportunity Rules and Policies (MM Docket 98-204)

The public benefits of individuals in our society having equal employment opportunities, based on merit rather than discriminatory factors, are so numerous they are impossible to list. I believe few would disagree with this proposition. What is difficult is crafting initiatives designed to foster these ideals that do not run afoul of the Constitution's command that such programs be sufficiently justified and that the means chosen be carefully fitted to the stated purpose. Recognizing that EEO programs crafted to assist one class of persons can accrue to the detriment of another, the judiciary has increasingly demanded stronger justification for such programs. See Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995).

Many have bemoaned these developments in equal opportunity jurisprudence. In many ways, however, I think that these developments on balance have been positive. More demanding judicial scrutiny forces those of us who believe in the goals of opportunity and non-discrimination to be more cautious in establishing programs and to be more thoughtful and rigorous in articulating justifying rationales. The decision in Lutheran Church(1) forced the Commission to challenge many of its assumptions and to try to craft an EEO program for which the purpose and mechanics rest on more solid footing. It has been a valuable exercise. I think we have largely succeeded in this Order for a number of reasons.

First and foremost, we introduce a program that is squarely race and gender neutral and, thus, not constitutionally suspect. At bottom, the adopted EEO rules are merely imperatives to reach out widely in recruiting for employment vacancies. All working Americans, regardless of stripe, benefit from such a program. Moreover, I am comfortable that nothing in this program fairly can be said to coerce or oblige broadcasters to hire any number of minorities or women, which was a central concern with our prior rules to the Lutheran Church court. Cf. Lutheran Church, 141 F.3d at 351-55.

Second, these EEO rules are limited and permissible measures that facilitate the avoidance of unlawful discrimination. They do not serve in any way to coerce broadcasters to hire any person of a particular race or gender. Requiring stations to recruit broadly is designed to serve as a curb against unintentional discrimination that "could not conceivably be understood as 'obliging' or 'encouraging' the use of any preference. It simply advises a method for increasing vigilance against discrimination" Lutheran Church, 154 F.3d at 497 (Edwards, C.J., dissenting) (on suggestion for rehearing en banc).

My own support for this item rests most heavily on its anti-discrimination rationale--a basis the Commission did not proffer to the court in defense of its prior rules. I fully recognize that the Lutheran Church court cautioned that agencies are not free to police general societal discrimination and that any anti-discrimination rationale the FCC might offer would have to be tied to communications service. Lutheran Church, 141 F.3d at 355 ("Thus the FCC can probably only regulate discrimination that affects 'communication service'-- here, that means programming.") I believe that the present rules, designed as curbs against discrimination, do relate to communications purposes, though not necessarily diversity of programming, as the court assumed. Id.

We are charged with the very unique responsibility of licensing the use of the airwaves. Such a license does not convey a property interest. See FCC v. Nextwave Personal Communications, Inc., --- F.3d ---, 1999 WL 1267039 at * 5 (2nd Cir. Dec. 22, 1999). Instead, precedent holds that the licensee acts as a public trustee promising to operate in the "public interest." The concept is amorphous and heated debate over its parameters have long raged. I, myself, have frequently criticized its seemingly unbounded reach.(2) Yet, whatever the standard means, or what weight it can bear, it remains the law that failure to operate in the "public interest" can disqualify a licensee from holding a license. See, e.g., 47 U.S.C. 309(a). As long as the public interest includes some component of worthiness to hold the public trust in the form of a license, it seems absolutely appropriate to condemn discrimination in our licensing policies. See 47 U.S.C. 308(b).

Moreover, I find nothing in the Constitution that bars the Commission from adopting race and gender neutral outreach measures in order to curb or retard the possibility of discriminatory impacts.(3) Indeed, licensees are given authorization to operate under the license for up to eight years before renewal, and most are given an expectancy of renewal.(4) These measures allow licensees to make substantial investments in their stations. It is an appropriate and efficient response for the government to require limited neutral measures to curtail discrimination on an ongoing basis, rather than await petitions to oppose a license renewal.

Third, though not explored in the Order, I would have liked to explore additional bases on which to justify EEO rules that are not hinged on diversity rationales. For example, section 1 of the Communications Act identifies as one the Commission's responsibilities the regulation of interstate and foreign communications services so as to make them available, "so far as possible, to all people of the United States, without discrimination on the basis of race, color, religion, national origin and sex. . . ." 47 U.S.C. 151. Though the conveyance of a license does not confer any property interest, a licensee is entitled to build a lucrative business and enjoy the profits exclusively that emanate from the license. I think it legitimate to attempt to widen the circle of those Americans that benefit from the fruits spawned by a license. One clear way to do so is to give as broad a cross-section of the public as possible the chance to work in enterprises built upon these licenses. Requiring a licensee to recruit broadly furthers the Congressional objective of making communication by wire "available, so far as possible, to all the people of the United States, without discrimination on the basis of race, color, religion, national origin, or sex," without substantially intruding on a licensee's commercial and business judgments. Id.

For the preceding reasons, I support this item. I must confess, however, my discomfort about our continued desire to place extraordinary weight on the relatively tenuous nexus between the hiring of low level employees and its impact on diversity of programming.(5) I am dubious of its validity and deeply worried that the courts have begun to view such rationale with dire skepticism.(6) I certainly hope that by proffering this rationale (again despite the Lutheran Church court's disapproval), we have not invited the judiciary to fracture any remaining legal foundation for diversity objectives.

1. See Lutheran Church - Missouri Synod v. FCC, 141 F.3d 344, pet. for reh'g denied, 154 F.3d 487, pet. for reh'g en banc denied, 154 F.3d 494 (D.C. Cir. 1998) ("Lutheran Church").

2. See Willful Denial and First Amendment Jurisprudence, Commissioner Michael K. Powell, Speech before the Media Institute, Washington, D.C. April 22, 1998. The most controversial public interest debates arise when the government attempts to direct programming choices. This, of course, raises First Amendment concerns. The "public interest" question at issue here, to my mind, does not run to programming but to the qualifications of a government licensee, a clear communications purpose.

3. It is well established that equitable measures to curb discriminatory impact do not violate the constitution. Such measures are not punitive, but instead equitable responses to business practices that may inadvertently affect suspect class members. This is the foundation of discriminatory impact claims under Title VII.

4. See, e.g., 47 U.S.C. 307(c)(1); 47 C.F.R. 73.1020.

5. I reserve judgment on the nexus between owners (or executive management) and programming. The Order frequently blurs the nexus issue between those that involve owners and those that involve employees generally.

6. See Metro Broadcasting, Inc. v. FCC, 497 U.S. 547, 602-630 (O'Connor, J., dissenting); Lutheran Church, 141 F.3d at 356; Lamprecht v. FCC, 958 F.2d 382 (D.C.Cir.1992) (sex-based preference failed when FCC introduced no evidence supporting a link between female ownership and "female programming").