United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Filed On: June 19, 2001

No. 00-1094

MD/DC/DE Broadcasters Association, et al.,

Petitioners

v\.

Federal Communications Commission and

United States of America,

Respondents

Minority Media and Telecommunications

Council, et al.,

Intervenors

Consolidated with

00-1198

\-\-\-\-\-\-\-\--

BEFORE: Edwards, Chief Judge, Williams, Ginsburg, Sentelle, Henderson,
Randolph, Rogers, Tatel, and Garland, Circuit Judges.

O R D E R

Petitioner\'s, respondents\', and intervenors\' petitions for rehearing
en banc and the responses thereto have been circulated to the full
court. The taking of a vote was requested. Thereafter, a majority of the
judges of the court inregular active service did not vote in favor of
the petitions.

Upon consideration of the foregoing, it is

ORDERED that the petitions be denied.

Per Curiam

FOR THE COURT:

Mark J. Langer, Clerk

Circuit Judge Garland did not participate in this matter.

A statement of Circuit Judge Tatel, joined by Chief Judge Edwards and
Circuit Judge Rogers, dissenting from the denial of rehearing en banc is
attached.

Tatel, Circuit Judge, joined by Edwards, Chief Judge, and Rogers,
Circuit Judge, dissenting from the denial of rehearing en banc: \"A
facial challenge \... is, of course, the most difficult challenge to
mount successfully, since the challenger must establish that no set of
circumstances exists under which the Act would be valid.\" United States
v. Salerno, 481 U.S. 739, 745 (1987). The same principle governs facial
challenges to regulations. See INS v. Nat\'l Ctr. for Immigrants\'
Rights, Inc., 502 U.S. 183, 188 (1991). In this case, the panel found
that Option B could not be applied without harming white males and
therefore declared it facially unconstitutional. Because in so ruling
the panel departed from basic principles of judicial restraint\--going
beyond the record, speculating about how the Commission will enforce the
rule and how broadcasters might react, and refusing to defer to the
Commission\'s reasonable interpretation of its own rule\--I respectfully
dissent from the denial of the three suggestions for rehearing en banc.
See also FCC Pet. for Reh\'g & Suggestion for Reh\'g En Banc at 3 (\"The
limited scope of our rehearing petition \... should not be misread as
reflecting the Commission\'s agreement with the Court\'s conclusion that
Option B pressures broadcasters to recruit women and minorities in
violation of the equal protection component of the Fifth Amendment. The
Commission disagrees with the Court\'s conclusions in that regard and
would welcome grant of rehearing on the Court\'s equal protection
analysis.\").

I agree with the panel that Adarand \"requires strict scrutiny only of
governmental actions that lead to people being treated unequally on the
basis of their race.\" MD/DC/DE Broadcasters Ass\'n v. FCC, 236 F.3d 13,
20 (D.C. Cir. 2001). But I do not agree that, on its face, Option
B\--which is entirely optional\--triggers strict scrutiny. Contrary to
the panel opinion, Option B merely requires outreach to the entire
community, and broadcasters can accomplish such out-reach without
reducing their recruitment of white males.

\"We require,\" the Commission said of the entire rule, that
broadcasters \"reach out in recruiting new employees beyond the confines
of their circle of business and social contacts to all sectors of their
communities.\" Review of the Commission\'s Broadcast Equal Employment
Opportunity Rules and Policies, 15 F.C.C.R. 2329, p 3 (2000) (\"R&O\").
Broadcasters choosing Option B may \"design their own outreach program
to suit their needs, as long as they can demonstrate that their program
is inclusive, i.e., that it widely disseminates job vacancies through
the local community.\" Id. at p 104. The Commission explained further:

\[W\]e believe that the objective of ensuring that minority and female
applicants have the opportunity to apply for positions \... may be
achieved without a specific requirement that broadcasters in every
situation use recruitment methods that specifically target those groups.
Out-reach that is truly broad and inclusive will necessarily reach
minorities and females.

Id. at p 77. Moreover, Option B requires submission of racial data only
to enable \"evaluat\[ion of\] whether the program is effective in
reaching the entire community.\" Id. at p 104. Although \"few or no\"
minority or female applicants \"may be one indication \... that the
station\'s outreach efforts are not reaching the entire community,\" id.
at p 120, the Commission emphasized that having few or no female or
minority applicants would not be dispositive in its analysis of the
adequacy of a broadcaster\'s recruitment program:

\[T\]here is no requirement that the composition of applicant pools be
proportionate to the composition of the local workforce\.... We may
ultimately determine that outreach efforts are reasonably designed to
reach the entire community, even if few females or minorities actually
apply for openings. Conversely, the fact that a sizeable number of
females or minorities have applied for 'openings will not necessarily
establish the inclusiveness of the station\'s efforts. Also, we
recognize that an employer cannot control who applies for jobs.

Id.

Broadcasters electing Option B could thus satisfy their obligation
simply by undertaking broad, non-racially-targeted recruiting. For
example, advertising in a local newspaper read by both minorities and
nonminorities could reach \"the entire community.\" Id. No record
evidence suggests that such advertising would reduce the number of white
males receiving job information. Indeed, broad outreach might reach more
white males.

Because there exist \"circumstances \... under which\" broadcasters can
comply with Option B with no adverse effect on white males, the
broadcasters\' facial challenge should have failed. See Salerno, 481
U.S. at 745. The panel should have dismissed their petition, leaving
them free to bring an as-applied challenge when and if the Commission
applies the rule in a discriminatory manner. Instead, misinterpreting
Option B and engaging in its own fact-finding, the panel found that
Option B would inevitably curtail recruitment of white males, and so
subjected it to strict scrutiny.

To avoid the fact that broadcasters could totally ignore Option B, the
panel said \"the Commission does not argue that Option B creates no
pressure to recruit women and minorities because a licensee could always
elect Option A.\" 236 F.3d at 20 n.\*. In its Report and Order, however,
the Commission stated precisely that:

\[W\]e note that the alternative recruitment program is completely
optional; any employer who prefers not to collect data concerning the
race, ethnicity or gender of its applicants can comply with \[Option
A\'s requirements\], none of which requires the collection of such data.
No broadcaster or cable entity has cause to complain about a program
with which it is not required to comply.

R&O at p 224. True, the Commission did not make this argument to the
panel, but given that the broadcasters challenged the constitutionality
of Option A as well as B, it is understandable that the Commission never
argued that Option B is not coercive because of the presence of Option
A. Although the Commission could have so argued in the alternative, the
fact that it didn\'t still does not justify ignoring the Rule\'s plain
language.

To avoid the fact that nothing on the face of Option B requires that
\"people be\[ \] treated unequally on the basis of their race,\"
MD/DC/DE Broadcasters, 236 F.3d at 20, the panel found that Option B
\"pressure\[s\]\" broadcasters to \"focus their recruiting efforts upon
women and minorities, at least until those groups generate a safe
proportion of the licensee\'s job applications.\" Id. at 19-20.
According to the panel, this will occur because the Commission, having
\"life and death power\" over broadcasters and \"a long history of
employing\[ \] \'a variety of sub silentio pressures and \"raised
eyebrow\" regulation,\' \" id. at 19 (quoting Cmty.-Serv. Broad. of
Mid-Am., Inc. v. FCC, 593 F.2d 1102, 1116 (D.C. Cir. 1978)), \"promises
to investigate any licensee that reports \'few or no\' applications from
women or minorities.\" Id.; see also Supplemental Op. at 2 n.\*.
Licensees, the panel found, \"reasonably might (and prudently would)
conclude\" that the Commission\'s \"focus upon the race and sex of
applicants belies its statement \... that its only goal is that
licensees recruit with a \'broad outreach.\' \" MD/DC/DE Broadcasters,
236 F.3d at 19. The panel concluded that the Commission \"is interested
in results, not process, and is determined to get them.\" Id.

The panel\'s analysis finds no support in the record. The Commission
never \"promise\[d\]\" to investigate licensees that report few or no
applications from women or minorities. The only record reference to the
Commission\'s investigative priorities is its statement that: \"\[E\]ach
year we will randomly select for audit approximately five percent of all
licensees\.... We may also conduct an inquiry if the Commission has
evidence of a possible violation of the EEO Rule.\" R&O at p 145
(emphasis added). Moreover, the Commission made clear that, in
evaluating a broadcaster\'s outreach program, it would not view as
dispositive the number of women and minorities in the broadcaster\'s
applicant pool. See supra at 2-3 (quoting R&O at p 120). Because
broadcasters could thus accomplish broad outreach without race-targeted
recruiting, speculation that some broadcasters, imagining pressure from
the Commission or misreading the agency\'s intentions, might go beyond
what Option B requires is no reason to declare it facially
unconstitutional. Finally, the panel had no basis for suspecting the
Commission\'s intentions. Not only do the phrases \"sub silentio
pressures\" and \" \'raised eyebrow\' regulation\" describe Commission
behavior occurring over two decades ago, see supra at 4, but nothing in
the record of this case indicates that such behavior continues today or
that the Commission\'s goal is anything other than what it declares it
to be broad outreach.

It is possible, as the panel suggested with its own hypothetical, that
some broadcasters might redirect recruiting efforts so that
\"prospective nonminority applicants who would have learned of job
opportunities but for the Commission\'s directive now will be deprived
of an opportunity to compete simply because of their race.\" 236 F.3d at
21. Yet Option B does not require this result, nor does record evidence
support the panel\'s assumption that nonminorities will inevitably
receive less job information. Even assuming, as the panel speculated,
that recruiting budgets are \"fixed in the short run,\" id. at 20 &
n.\*\*, there is no reason to believe that broadcasters would not
reallocate recruiting expenditures without depriving nonminorities of
job information. Nor does record evidence support the panel\'s
assumption that \"even if an employer increases its recruiting budget,\"
it will necessarily use those additional funds for recruiting that is
\"targeted at minorities.\" Id. at 20 n.\*\*. In fact, the Commission
expressly declined to require targeted recruiting. See supra at 2
(quoting R&O at p 77). Of course, community-wide outreach could mean
that white males would face job competition from women and minorities,
but not even the panel suggested that this would trigger strict
scrutiny.

Determining whether an outreach program crosses the line from expanding
opportunities for minorities to disadvantaging nonminorities, thus
triggering strict scrutiny\--and if so whether the program
survives\--are difficult issues that neither we nor the Supreme Court
has yet considered. We should be especially careful to resolve these
important questions on a fully developed record, not on the basis of
appellate fact-finding or broadcaster paranoia.

\* \* \*

The panel\'s decision that Option B is not severable also warrants en
banc review. See FCC Pet. for Reh\'g & Suggestion for Reh\'g En Banc.
The decision conflicts with circuit precedent and, like the panel\'s
resolution of the equal protection issue, rests on the panel\'s
rejection of the Commission\'s reasonable interpretation of its own
Rule.

Agency intent has always been the touchstone of our inquiry into whether
an invalid portion of a regulation is severable. See, e.g., Davis County
Solid Waste Mgmt. v. EPA, 108 F.3d 1454, 1459 (D.C. Cir. 1997); North
Carolina v. FERC, 730 F.2d 790, 795-96 (D.C. Cir. 1984). In this case,
the panel acknowledged that \"the Commission clearly intends that the
regulation be treated as severable.\" 236 F.3d at 22 (citing the
Commission\'s statement that \"\[i\]t is our intention \... that, if any
provision of the rules \... \[is\] held to be unlawful, the remaining
portions of the rules not deemed unlawful \... shall remain in effect to
the fullest extent permitted by law,\" R&O at p 232). But relying on K
Mart Corp. v. Cartier, Inc., 486 U.S. 281, 294 (1988), the panel
undertook an additional inquiry, asking \"whether the remainder of the
regulation could function sensibly without the stricken provision.\" 236
F.3d at 22. Answering no, the panel invalidated the entire Rule.
According to the panel, \"\[t\]he core of the rule, by Commission
design, is to provide broadcasters with two alternatives,\" id., a goal
unattainable by Option A alone.

K Mart concerned a different question than the one presented here.
There, the question was whether a statute\'s function would be impaired
if, after invalidating a portion of an implementing regulation, the
Court left the rest of the regulation in place. 486 U.S. at 294. Here,
the question is whether the Commission\'s Rule can function without
Option B. As in the case of any agency interpretation of its own
regulation, this is an issue on which we owe the Commission\'s views
special deference. See Trinity Broad. of Fla., Inc. v. FCC, 211 F.3d
618, 625 (D.C. Cir. 2000) (\"\[W\]e accord \[the Commission\'s\]
interpretation of its own regulations a high level of deference,
accepting it unless it is plainly wrong.\") (internal citation omitted).

Regardless of whether the panel may have had cause to doubt whether
Option A alone could have accomplished the Commission\'s goals, such
doubt no longer exists. In its petition for rehearing, the Commission
makes it unmistakably clear not only that it \"intended Option B to be
severable from the remainder of the rule,\" see FCC Pet. for Reh\'g &
Suggestion for Reh\'g En Banc at 10, but also that Option A alone can
accomplish the agency\'s \"core\" goal of ensuring broad outreach. Id.
at 13. When agencies clarify their intentions regarding severability
through petitions for rehearing, we normally correct our opinion and
reinstate the valid portions of the regulation. See Virginia v. EPA, 116
F.3d 499, 500-01 (D.C. Cir. 1997) (reinstating part of a rule in
response to EPA\'s petition for rehearing explaining that the part was
severable from sections invalidated in the original panel decision);
Davis County Solid Waste Mgmt., 108 F.3d at 1455-56, 1459-60 (same). In
this case, however, the panel summarily rejects the Commission\'s
clarification, attributing it to \"counsel\'s\" position. See
Supplemental Op. at 4-5 (\"counsel for the Commission argues \... \";
\"Commission counsel unequivocally states \... \"; \"counsel\'s
claim\"). To the extent the panel is implying that the petition does not
reflect the Commission\'s views and is thus unworthy of deference, that
notion is flatly inconsistent with decisions of the Supreme Court and
the law of this circuit. In Auer v. Robbins, 519 U.S. 452 (1997), the
Supreme Court held that unless a court has \"reason to suspect\" that an
interpretation of a regulation set forth in an agency brief does \"not
reflect the agency\'s fair and considered judgment,\" the agency\'s
interpretation deserves deference. Id. at 462; see also Bigelow v.
Dep\'t of Def., 217 F.3d 875, 876, 878 (D.C. Cir. 2000) (deferring to an
agency interpretation of a regulation set forth for the first time in a
brief signed only by a United States Attorney). In this case, we have no
basis for suspecting that the rehearing petition does not \"reflect the
\[Commission\'s\] fair and considered judgment.\" The filing is signed
by the Commission\'s \"Acting General Counsel,\" the Justice Department
has told us that it \"defer\[s\] to the FCC on the importance of the
severability issue,\" Resp. to Pets. for Reh\'g at 7 (emphasis added),
and Commissioner Gloria Tristani, in a press release issued the day the
petition was filed, referred to the action of the \"Commission.\" Press
Release, Commissioner Gloria Tristani, Re: MD/DC/DE Broadcasters Ass\'n
v. FCC Pet. for Reh\'g (Mar. 2, 2001) (\"Today, the FCC petitioned the
D.C. Circuit Court for a partial rehearing of its January 16, 2001,
opinion invalidating our EEO outreach rules for broadcasters. While I
support the submission as far as it goes, I am disappointed the
Commission declined to seek review of the entire decision.\") (emphasis
added).

In addition, the panel has no reason for finding the Commission\'s
position \"implausible.\" Supplemental Op. at 5. Although the panel
points to a few paragraphs in the Report and Order suggesting that
Option A by itself might provide less flexibility than Options A and B
together, there is enough flexibility in Option A alone to demonstrate
that the Commission\'s statement that it would have promulgated Option A
by itself is not \"plainly wrong.\" Trinity Broad., 211 F.3d at 625. The
thirteen program choices within Option A, the Commission explained,
avoided \"inflexible requirements\" and \"enable\[d\] broadcasters to
select the approaches that they believe will be most effective in their
situations.\" R&O at p 100. The Commission, moreover, emphasized that
Option A would independently meet its outreach goals. See id. at p 113.
According to the Commission, it reluctantly included Option B in
response to broadcasters\' urging: \"We are willing to allow
broadcasters to forego the supplemental recruitment measures \[of Option
A\] and to design their own outreach program to suit their needs, as
long as they can demonstrate that their program is inclusive, i.e., that
it widely disseminates job vacancies throughout the local community.\"
Id. at p 104 (emphasis added). As the Commission argues, the \"core of
the rule\" is Option A. See FCC Pet. for Reh\'g & Suggestion for Reh\'g
En Banc at 13.

There is, in other words, no \"substantial doubt\" that the Commission
would have adopted Option A \"on its own.\" See Davis County Solid Waste
Mgmt., 108 F.3d at 1459. In reaching a different conclusion, the panel
improperly substituted its own views for the Commission\'s.