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January 20, 2000


Re: Equal Employment Opportunity Rules and Policies (MM 98-204, 96-16)

One of the primary foundations of our broadcasting policy is promoting a diversity of viewpoints.(1) Broadcasting, and especially television, is still the means by which most Americans get their news and information. And children, whose values and self-image are still being formed, spend far more time with television than with any other medium.(2) It is simply unconscionable that a societal force of such reach and impact not be open to, and reflective of, all segments of the community.

Some question the link between EEO rules and diversity of programming. I do not. While not all minorities or all women share the same viewpoint, I believe that a broadcast industry that includes minorities and women would more likely air diverse viewpoints than a homogeneous workforce. Congress spoke to this issue in enacting the 1992 Cable Act:

The Committee believes now, as it did in 1984, that increased equal employment opportunities (EEO) for women and minorities, particularly in decision-making and managerial positions, ' is a crucial means of assuring that program service will be responsible to a public consisting of a diverse array of population groups.'(3)

Similarly, the Supreme Court has affirmed that the Commission's regulation of the employment practices of its licensees "can be justified as necessary to enable the FCC to satisfy its obligation under the Communications Act of 1934 . . . to ensure that its licensees' programming fairly reflects the tastes and viewpoints of minority groups."(4)

I support this item, not because it goes as far as perhaps I would like, but because the bulk of it goes as far as I think we should in the current legal landscape. I pray that it will be enough to create the kind of diversity on the public airwaves that Americans expect and deserve.

There are parts of today's Order that give me hope. One particularly ingenious provision is the "opt in" notification rule under Option A. Under this rule, minority and women's organizations, community groups and others can request that they be notified of any job openings that occur. This is a clearly race-neutral mechanism that could prove effective in ensuring that certain segments of the community are effectively notified of job openings.

Of course, getting the word out is not the same as getting a foot in the door. The Option A framework rests on the assumption that equal information will produce equal opportunity. We need to watch closely to see if this turns out to be true. And we need to continue working on studies that could justify a more race-conscious approach if today's assumptions prove too sanguine.

One area in which I would have gone further is Option B, where I agree with Chairman Kennard that we should have required the tracking of interviewee data, and not merely applicant data. Interviewee data is clearly superior to applicant data in measuring whether a broadcaster's outreach efforts are effective in reaching qualified applicants from all segments of the community. I am disappointed that a majority of the Commission did not agree. I therefore dissent from this part of the Order.

- FCC -

1. See, e.g., Metro Broadcasting, Inc. v. FCC, 497 U.S. 547, 567 (1990) ("Safeguarding the public's right to receive a diversity of views and information over the airwaves is therefore an integral component of the FCC's mission"); Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622, 663 (1994) ("[I]t has long been a basic tenet of national communications policy" that "the widest dissemination of information from diverse and antagonistic sources is essential to the welfare of the public"), quoting United States v. Midwest Video Corp., 406 U.S. 649, 668 n.27, quoting Associated Press v. United States, 326 U.S. 1, 20 (1945); Communications Act, Section 257 (noting that one of the "policies and purposes" of the Communications Act favors a "diversity of media voices").

2. Kaiser Family Foundation Report (1999) (finding that, on average, children watch two hours and forty-six minutes of television a day, compared to 48 minutes spent listening to CD's or tapes, the second most popular media activity).

3. H.R. Rep. No. 628, 102d Cong., 2d Sess. 111 (1992), quoting, H.R. Rep. No. 934, 98th Cong., 2d Sess. 85 (1984). Accord H.R. Rep. No. 628, 102d Cong., 2d Sess. 114 (1992):

The Courts and the Commission have consistently recognized the increasing amount of programming designed to address the needs and interests of minorities and women is fundamentally related to the number of minority and women employees in the upper-level positions within media companies. In addition, the Committee recognizes that a strong EEO policy is necessary to assure sufficient numbers of minorities and women gain professional and management level experience within the television industry, and thus that significant numbers of minorities and women obtain the background and training to take advantage of existing and future television broadcasting ownership opportunities.

4. NAACP v. FPC, 425 U.S. 662, 670 n.7 (1976).