**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

In the Matter of )

)

Streamlining Broadcast EEO Rule and Policies, ) MM Docket No. 96-16

Vacating the EEO Forfeiture Policy Statement and )

Amending Section 1.80 of the Commission\'s Rules )

To Include EEO Forfeiture Guidelines )

**ORDER AND POLICY STATEMENT**

**Adopted:** February 5, 1998; **Released:** February 25, 1998

By the Commission: Commissioner Furchtgott-Roth issuing a statement.

**I. INTRODUCTION**

In [Streamlining Broadcast EEO Rule and Policies]{.underline} (Order and
Notice of Proposed Rule Making), MM Docket No. 96-16, 11 FCC Rcd 5154
(1996) (\"[NPRM]{.underline}\"), the Commission set forth proposals for
streamlining the Commission\'s Equal Employment Opportunity (\"EEO\")
Rule and policies. We stated our concern that the Commission\'s EEO
requirements \"may unnecessarily burden broadcasters, particularly
licensees of smaller stations and other distinctly situated
broadcasters,\"[^1] and requested comment on ways to improve our EEO
Rule and policies to afford relief to such broadcasters without
undermining the effectiveness of our EEO program.[^2] In response to the
[NPRM]{.underline}, we received comments concerning one such group of
distinctly situated broadcasters, religious broadcasters, and their
treatment under the EEO Rule.[^3] Many of these commenters requested
that the Commission\'s EEO policy concerning religious broadcasters,
first announced in [Complaint by Trygve J. Anderson]{.underline}, 34 FCC
2d 937 (1972), [aff\'d sub nom.]{.underline} [King\'s Garden v.
FCC]{.underline}, 498 F.2d 51 (D.C. Cir.), [cert. denied]{.underline},
419 U.S. 996 (1974) (\"[King\'s Garden]{.underline}\"), be changed.
Because we believe that this issue is ripe for review, we hereby issue
this [Order and Policy Statement]{.underline} which adopts a change in
the Commission\'s enforcement of the EEO Rule for religious
broadcasters, as defined herein.[^4]

**II. BACKGROUND**

Section 73.2080 of the Commission\'s Rules, 47 C.F.R. § 73.2080,
requires a broadcast licensee or permittee to refrain from employment
discrimination on the basis of race, color, religion, national origin,
or sex, and to establish, maintain, and carry out an EEO program
reflecting positive and continuing efforts to assure equal employment
opportunity in every aspect of station employment. The EEO Rule is not
intended to replicate federal and state anti-discrimination laws but to
promote equal employment opportunity as a means to furthering program
diversity.[^5] When evaluating a licensee\'s EEO performance, the
Commission focuses on the licensee\'s efforts to contact sources likely
to refer qualified women and minorities and the licensee\'s ongoing
assessment of its EEO efforts. The objective of the Commission\'s
efforts-based program is to increase the pool of eligible candidates
from which the licensee can select the best qualified applicant.[^6]
Broadcast stations with five or more full-time employees are required to
file a \"Broadcast Equal Employment Opportunity Program Report\" (Form
396) as part of their renewal application and to file a \"Broadcast
Station Annual Employment Report\" (Form 395-B) on a yearly basis.[^7]
In addition, applicants for broadcast construction permits, transfers of
control and assignment of licenses are required to file a \"Broadcast
Equal Employment Opportunity Model Program Report\" (Form 396-A).

**III. DISCUSSION**

Our policy in [King\'s Garden]{.underline} established a limited
exemption for religious broadcasters from the Commission\'s rules
prohibiting employment discrimination on the basis of religion. The
exemption applies to persons hired to espouse religious views over the
air.[^8] The National Religious Broadcasters (\"NRB\"), a national
association of radio and television broadcasters whose purpose is to
\"foster and encourage the broadcasting of religious programming,\"[^9]
urges the Commission to refashion the [King\'s Garden]{.underline}
policy to permit religious licensees to establish religious affiliation
or belief as a [bona fide]{.underline} occupational qualification for
[all]{.underline} positions at their stations.[^10] Upon review of this
matter, we conclude that the Commission\'s policy should be expanded to
permit religious broadcasters to establish religious belief or
affiliation as a job qualification for all station employees. This
action should be considered binding for radio licensees and permittees,
and, in light of the limitations imposed by Section 334 of the
Communications Act,[^11] a non-binding policy statement for television
licensees and permittees. Therefore, in this [Order and Policy
Statement]{.underline}, we expand the Commission\'s [King\'s
Garden]{.underline} policy, as described [supra]{.underline}. However,
we emphasize that this action does not permit religious broadcasters to
engage in employment discrimination against women and minorities and
that religious broadcasters, when vacancies occur, will still be
required to recruit without limitation on the basis of race, color,
national origin or gender from among those who share their religious
affiliation or belief.

In [King\'s Garden]{.underline}, the court upheld the Commission\'s
limited exemption policy.[^12] \"Where a job position has no substantial
connection with program content, or where the connection is with a
program having no religious dimension,\" the court held enforcement of
the Commission\'s nondiscrimination rules does not violate a licensee\'s
First Amendment right to freedom of religious expression.[^13] In
deciding that the Commission\'s policy violated neither the Free
Exercise nor the general First Amendment rights of religious
broadcasters, the court\'s decision does not preclude the Commission
from defining and broadening its policy to include all station
employees.

The NRB, in comments supported by some eighty other parties, submits
that the Commission should alter its current policy of affording
religious broadcasters a limited exemption from the EEO requirements and
adopt a \"bright line exemption\" extending to all positions at such a
broadcast station.[^14] Specifically, NRB and other commenters[^15]
posit that the Commission\'s current policy places a substantial burden
on the ability of religious broadcasters to order their internal
affairs, including the conduct of activities undertaken as a community
and the need to insure that all employees share a common commitment to
the licensee\'s religious objective and mission. Moreover, NRB submits
that the [King\'s Garden]{.underline} policy excessively entangles the
government in religious affairs, whereas a bright line rule exempting
all positions at a religious station would avoid this pitfall.[^16]

We believe that it is reasonable to conclude that it may be appropriate
for all employees of religious broadcasters to share a common commitment
to a licensee\'s basic religious objective and mission.[^17] As NRB
contends, \"employees at all levels have an ability to affect the morale
and cohesiveness of religious organizations by the beliefs they espouse
and the standards of moral conduct that they maintain.\"[^18] By
allowing religious broadcasters to use religious belief or affiliation
as a job qualification for all station jobs, we will eliminate the
potential danger of impermissible governmental interference with a
religious broadcaster\'s judgment in the conduct and definition of its
religious affairs, and, as NRB points out, end the need for the
Commission\'s current practice of engaging in case-by-case analysis of
particular job categories to determine if they involve espousal of the
licensee\'s religious views.[^19] Such an action is consistent with the
principle long recognized by the Supreme Court \"that the government may
(and sometimes must) accommodate religious practices and that it may do
so without violating the Establishment Clause\" of the First
Amendment.[^20] Moreover, subjecting all station jobs to the same
requirements is also more consistent with our current enforcement of the
EEO Rule generally. Consequently, we broaden our [King\'s
Garden]{.underline} policy to allow religious broadcasters to use
religious belief or affiliation as a job qualification for all station
jobs. We reiterate, however, that our action today does not create a
blanket exemption from our EEO Rule. We expect that religious
broadcasters will continue to ensure equal employment opportunity in
every aspect of station employment policy and practice for persons who
share their faith. We emphasize that religious broadcasters, like
others, must serve the public interest as articulated in Commission
rules and policies.

For these purposes, we will define a \"religious broadcaster\" as a
licensee which is, or is closely affiliated with, a church, synagogue,
or other religious entity, including a subsidiary of such an entity. Our
determination as to whether a licensee is a \"religious broadcaster\"
will be made on a case-by-case analysis, based upon an evaluation of the
religious entity\'s characteristics. The relevant characteristics will
include, among other things, whether the entity is operated for profit
or non-profit, the existence of a distinct religious history, and
whether the entity\'s articles of incorporation mention any religious
purpose. The Equal Employment Opportunity Commission conducts a similar
process in determining whether an entity qualifies as a \"religious
corporation.\"[^21]

In their reply comments, AJC and AUSCS disagree with expanding the
[King\'s Garden]{.underline} policy. AUSCS is concerned that expanding
the [King\'s Garden]{.underline} policy could lead to racial and ethnic
discrimination and have a negative impact on equal opportunity in the
industry. As noted above, however, religious broadcasters are still
required to operate their stations in the public interest, as defined by
the Commission\'s rules and policies. Religious broadcasters, like all
other licensees, take their licenses subject to the responsibilities and
obligations of public trustees. Thus, we believe AUSCS\' concern
unavailing.

Nothing in this order should be interpreted as permission to engage in
employment discrimination against women and minorities. As stated
previously, religious broadcasters must still recruit without limitation
on the basis of race, color, national origin or gender from among those
who share their religious affiliation or belief in filling positions at
their stations. Religious broadcasters will also remain subject to
Sections 73.2080(b) and (c) of the Commission\'s Rules, 47 C.F.R. §§
73.2080(b) and (c), requiring broadcast licensees to maintain a positive
continuing program of specific practices designed to ensure equal
employment opportunity, for persons who share their faith, in every
aspect of station employment policy and practice. We hereby emphasize
this continuing obligation notwithstanding any suggestion to the
contrary in [Lutheran Church/Missouri Synod]{.underline}, 12 FCC Rcd
2152, 2166 n.9 (1997), [appeal pending]{.underline}. We shall also
continue to require religious broadcasters to file Forms 396-A, 396 and
395-B, and will still examine their EEO programs at renewal time, as
well as other relevant periods, to determine if they have complied with
our EEO Rule, inquire further if there is evidence of lack of
compliance, and take appropriate action if violations have occurred.

**IV. PROCEDURAL MATTERS**

[Paperwork Reduction Act of 1995 Analysis]{.underline}

The decision herein has been analyzed with respect to the Paperwork
Reduction Act of 1995, Pub. L. No. 104-13, and found to impose or
propose no modified information collection requirement on the public.

[Final Regulatory Flexibility Certification]{.underline}

As required by the Regulatory Flexibility Act (\"RFA\"),[^22]
[see]{.underline} 5 U.S.C. Section 603, an Initial Regulatory
Flexibility Analysis (\"IRFA\") was incorporated in the
[NPRM]{.underline}.[^23] The Commission sought written public comments
on the proposals in the [NPRM]{.underline}, including the IRFA.

Joint Commenters criticize the IRFA for not stating that the proposals
in the [Notice]{.underline} could adversely affect some non-licensee
entities including Black colleges, community groups which refer job
candidates, discrimination victims, individual job applicants,
petitioners to deny, and members of the listening and viewing audience.
Joint Commenters maintain that the IRFA failed \"to mention the limited
resources available to each of these parties in meeting significant
burdens which would be imposed on them by cutbacks in EEO
enforcement.\"[^24] Joint Commenters\' arguments are without merit. In
the IRFA, the Commission did not indicate the economic impact of a rule
change on any entity, stating that it \"was unable to assess at this
time what, if any, economic impact the proposed rule change would have
on small business entities\" and that a full assessment of the potential
impact would be made, if applicable, at the final rulemaking stage.[^25]
Furthermore, the entities described by Joint Commenters would not be
discussed in the Regulatory Flexibility Analysis at any stage in this
proceeding because such analysis is reserved for entities directly
regulated and affected by the subject rule of a proceeding and the
entities discussed by Joint Commenters are not so regulated and
affected. [See]{.underline} [Mid-Tex Electric Cooperative, Inc. v.
Federal Energy Regulatory Commission]{.underline}, 773 F.2d 327 (D.C.
Cir. 1985).

We now believe that, pursuant to the RFA, [see]{.underline} 5 U.S.C. §
605(b), we can certify that the action taken in [this]{.underline}
[Order and Policy Statement]{.underline}, as distinguished from the
broader proposals contained in the entire [NPRM]{.underline}, will not
have a significant economic impact on a substantial number of small
entities. Other issues and proposals will be addressed in a Report and
Order to be issued at a later date. This action simply allows religious
broadcasters to establish religious affiliation or belief as a [bona
fide]{.underline} occupational qualification for all station positions,
an action which will not have a significant economic impact. Religious
broadcasters are still required to ensure equal employment opportunity
in every aspect of station employment policy and practice for persons
who share their faith. The Commission will publish this certification in
the Federal Register, and will provide a copy of the certification to
the Chief Counsel for Advocacy of the Small Business Administration. The
Commission will also include the certification in the report to Congress
pursuant to the RFA, [see]{.underline} 5 U.S.C. § 801.

[Ordering Clauses]{.underline}

Accordingly, **IT IS ORDERED** that, pursuant to the authority contained
in Sections 4, 303, and 307 of the Communications Act of 1934, as
amended, 47 U.S.C §§ 154, 303, and 307, the change to the Commission\'s
enforcement of its EEO Rule as to religious broadcasters, as described
in this [Order and Policy Statement]{.underline}, **IS ADOPTED**.

**IT IS FURTHER ORDERED** that, pursuant to the Contract with America
Advancement Act of 1996, the change set forth in this [Order and Policy
Statement]{.underline} **SHALL BE EFFECTIVE** either 30 days after
publication in the [Federal Register]{.underline} or upon receipt by
Congress of a report in compliance with the Contract with America
Advancement Act of 1996, Pub. L. No. 104-121, whichever is later.

**IT IS FURTHER ORDERED** that the Commission\'s Office of Public
Affairs, Reference Operations Division, **SHALL SEND** a copy of this
[Order and Policy Statement]{.underline}, including the Final Regulatory
Flexibility Certification, to the Chief Counsel for Advocacy of the
Small Business Administration.

**FEDERAL COMMUNICATIONS COMMISSION**

Magalie Roman Salas

Secretary

**[SEPARATE STATEMENT OF COMM. HAROLD W. FURCHTGOTT-ROTH]{.underline}**

**In the Matter of Broadcast Equal Employment Opportunity Enforcement
Policy As to Religious Broadcasters**

I agree with the essential conclusion of this Order & Policy Statement,
namely, that religious broadcasters should be permitted to establish
religious belief or affiliation as a legitimate occupational
qualification for all employees, and I therefore support its adoption. I
write separately simply to highlight several important points that this
item leaves unaddressed.

**Who Is A \"Religious Broadcaster\"?**

At this point in time, it is not entirely clear which broadcast
licensees are even entitled to invoke the benefits of this Order &
Policy Statement. If the meaning of the term \"religious broadcaster\"
truly depends on \"case-by-case analysis, based upon an evaluation of .
. . characteristics\" not conclusively described, *see* page 4
(\"relevant characteristics will include, *among other things* . . .\")
(emphasis added), it would appear difficult, if not impossible, to know
*ex ante* whether a particular licensee is covered by the policy \-- at
least until the Commission establishes helpful precedent on the
definition of \"religious broadcaster.\" And although we observe that
the Equal Employment Opportunity Commission conducts a \"similar\"
inquiry, *id.*, we do not say whether the existing caselaw developed by
that agency will in fact guide our decisionmaking.

Due to this potential ambiguity as to coverage, I fear that we may have
merely shifted the uncertainty and attendant chilling effect surrounding
the rights of religious broadcasters from the back end of our policy
(the determination of jobs involving religious espousal) to the front
(the determination whether a licensee is a religious broadcaster). *Cf.
Corporation of the Presiding Bishop v. Amos*, 483 U.S. 327, 343-44
(1987) (Brennan, J., concurring) (\"A case-by-case analysis for
\[religious and secular\] activities . . . would both produce excessive
government entanglement with religion and create the danger of chilling
religious activity.\"). This remains to be seen.

**Potential Inconsistency Between Exemption and Processing Scheme**

In the near future, perhaps when we apply this new rule in the context
of a specific licensing proceeding, I would hope that we also come to
grips with other practical problems that implementation of the item
could present. For instance, although the Order & Policy Statement
asserts that religious broadcasters cannot discriminate on the basis of
race, color, national origin, or gender \"from among those who share
their religious affiliation or belief,\" page 4, our current Equal
Employment Opportunity (EEO) processing scheme explicitly requires
statistical comparison of the racial and gender composition of a
broadcaster\'s workforce to the general racial and gender makeup of the
entire local labor market, without regard to religious affiliation. *See
Streamlining Broadcast EEO Rules and Policies* (Order and Notice of
Proposed Rulemaking), 11 FCC Rcd 5154, 5159-61 (1996).

If the ability to choose employees who share a religious broadcaster\'s
faith is to be exercised without penalty for any unintentional disparate
impact that such exercise might have on other groups, *cf. In re
Applications of the Lutheran Church/Missouri Synod* (Memorandum Opinion
and Order), 12 FCC Rcd 2152, 2153 (1997), the Commission should evaluate
that broadcaster\'s equal employment efforts in light of the labor pool
of persons with the same religious affiliation as the broadcaster.
Procedural adjustments thus may be necessary in order to eliminate this
potential inconsistency between our new approach toward religious
broadcasters and extant EEO procedures.

**Processing By Legal Standards Rather Than \"Guidelines\"**

The above-described modification of our renewal procedures should be
clearly established in a legally enforceable manner. Unfortunately, the
Commission\'s current processing \"guidelines,\" as they have been
termed, are not set forth in any duly-promulgated regulations. Rather,
they are merely the product of agency custom \-- a situation that can
all too easily lead to inconsistent and possibly arbitrary application
\-- and were apparently developed without notice or comment.

Although we thus would be well advised to codify the entirety of our
enforcement guidelines in published and accessible rules so that *all*
broadcasters could enjoy greater certainty about the standards by which
their EEO efforts will be measured, only the question of religious
broadcasters is posed here. And with respect to those broadcasters, we
ought at least to ensure that if the above-described adjustment to our
EEO review is made, it is rooted in a rule of law.

**Legal Status of Changes in EEO Enforcement**

To all of this, there is a complicating factor: section 334 of the
Communications Act. That provision states:

\"\[T\]he Commission shall not revise . . . the regulations concerning
equal employment opportunity as in effect on September 1, 1992 (47
C.F.R. 73.2080) as such regulations apply to television broadcast
station licensees and permittees; or . . . the forms used by such
licensees and permittees to report pertinent employment data to the
Commission.\"

47 U.S.C. section 334(a)(1)-(2). In light of section 334, the Commission
noted at the outset of this proceeding that any changes in our EEO
system that \"require the revision of EEO regulations and/or forms for
television stations would require statutory change\" and further
observed \"that statutory change would not be required for the proposals
if they only applied to radio stations.\" *Streamlining Broadcast EEO
Rules and Policies*, 11 F.C.C. Rcd. at 5167. By its plain terms and as
the Commission has construed it, then, section 334 has no applicability
to regulatory changes made with respect to radio stations.[^26]
Religious broadcasters who operate those kinds of stations can thus be
sure that they are legally entitled to use religious affiliation as a
*bona fide* occupational qualification for all station jobs upon
issuance of this item.[^27]

Whether religious broadcasters in the television business can do so,
however, is far murkier. We have made clear that, due to section 334,
this item is only a statement of policy as to religious television
stations. *See* pages 2-3 (\"This action should be considered . . .
\[,\] in light of the limitations imposed by Section 334 of the
Communications Act, a non-binding policy statement for television
licensees and permittees.\"). Policy statements, as the U.S. Court of
Appeals for the D.C. Circuit has repeatedly explained, have no force of
law whatsoever, absent independent rulemaking or adjudication. *See
Telecommunications Research and Action Center v. FCC*, 800 F.2d 1181,
1186 (1986) (policy statement is \"\'neither a rule nor a precedent. . .
. \[L\]ike a press release, \[it\] presages an upcoming rulemaking or
announces the course which the agency intends to follow in future
adjudications.\'\") (quoting *Pacific Gas & Electric Co. v. FPC*, 506
F.2d 33, 38 (D.C. Cir. 1974)); *American Bus Association v. ICC*, 627
F.2d 525, 529 (D.C. Cir. 1980) (policy statement \"acts \[only\]
prospectively\" and \"genuinely leaves the agency and its
decision-makers free to exercise discretion.\").

Accordingly, today\'s action cannot, by itself, create any enforceable
substantive right in religious television broadcasters to be free from
application of the EEO religious anti-discrimination provision, nor can
it preclude the Commission from enforcing that provision against such
broadcasters. Until we either embody the \"policy\" announced today in
an official agency rule or adhere to it in future adjudication, the
legitimate interests of all religious broadcasters that we recognize
today will not be safeguarded with any degree of real certainty. Short
of such action, this statement is but a promise that can be broken
tomorrow.

On the other hand, further agency action to create a binding standard
for religious television broadcasters might arguably run afoul of
section 334. That is, subsequent adherence to this policy statement by
the Commission in matters involving television licensees could
theoretically raise questions about the propriety of such action *if*
application of the policy could be said to constitute a \"revision of
EEO regulations\" within the meaning of section 334. And if that *were*
the case, Congressional action might be necessary, as suggested in the
Notice of Proposed Rulemaking, and our hands might be tied; no matter
how laudable the goal of establishing an enforceable right for religious
television broadcasters to hire based on religious affiliation, the
Commission of course would not be free to violate the law in pursuit of
that end. While I express no final views on the impact of section 334 on
our ability to take action beyond mere policy statements in this
context, I simply note the possibility that we could find ourselves on
the horns of a regulatory dilemma as far as religious broadcasters who
operate television, as opposed to radio, stations are concerned.

**Religious Freedom**

I note one last, and grave, difficulty with respect to enforcement of
the EEO rules as against religious broadcasters. If and when an
individual claims that they are a member of a certain religious faith
but were nevertheless denied a job based on impermissible factors, and
the religious broadcaster in turn asserts that the person is not in fact
a member of their religious group, it is imperative that the Commission
not involve itself in the determination of who is and who is not a *bona
fide* member of a particular religious organization. Even under the
umbrella of one religious denomination, there may be factions that
disagree about the tenets of that denominational faith; the history of
religion is replete with examples of such schisms. These are intensely
personal debates into which government ought not inject itself. If the
factual question of who is a \"true\" member of a particular religious
group arises in the context of an EEO proceeding, government should
defer to the considered judgment of the particular group with which the
broadcaster is affiliated.

Indeed, the constitutional principles implicitly acknowledged today
teach as much. The First Amendment protects the ability of religious
entities \"to decide for themselves, free from state interference,
matters of church government as well as those of faith and doctrine,\"
*Kedroff v. St. Nicholas Cathedral of the Russian Orthodox Church in
North America*, 344 U.S. 94, 116 (1952), and \"\[t\]here can be no
clearer example of an intrusion into the internal structure or affairs
of an association than a regulation that forces the group to accept
members it does not desire,\" *Roberts v. United States Jaycees*, 468
U.S. 609, 623 (1984). In implementing our EEO rules, we must take care
not to infringe the rights of religious organizations to
self-identification, or the associational rights of persons belonging to
such organizations, by launching governmental inquiries into whether a
person shares the same faith as others who believe that he does not.

**Conclusion: A Step In The Right Direction**

Notwithstanding the above-described concerns regarding future
implementation of this new EEO position, I support this item. I do so
because I believe that it is a step in the legally right direction for
our EEO policies concerning religious broadcasters. By no means,
however, does it represent the end of the matter. Many difficult issues
\-- including ones deriving from the non-binding nature of this action
with respect to television licensees \-- lie ahead.

[^1]: ^?^ [Id.]{.underline} at 5155.

[^2]: ^?^ [Id]{.underline}. at 5162-5163.

[^3]: ^?^ Commenters on this issue included National Religious
    Broadcasters (\"NRB\"); over 100 letters in support of NRB\'s
    comments; the Christian Legal Society\'s Center For Law and
    Religious Freedom; Concerned Women for America, and Focus on the
    Family (\"CLS\"); the Center for Individual Rights (\"CIR\"); the
    Lutheran-Church - Missouri Synod (\"LCMS\"); the Adventist Radio
    Network (\"ARN\"); Americans United For Separation of Church and
    State (\"AUSCS\"); the American Civil Liberties Union, People For
    the American Way, and the Office of Communication of the United
    Church of Christ; Illinois Bible Institute; Southwest Florida
    Community Radio, Inc.; Side By Side, Inc.; Radio Training Network,
    Inc.; Eastern Shore Broadcasting, Inc.; and the American Jewish
    Committee (\"AJC\").

[^4]: ^?^ This [Order and Policy Statement]{.underline} concerns only
    religious broadcasters. We will address the other issues and
    specific proposals raised in the [NPRM]{.underline} in a Report and
    Order to be issued at a later date.

[^5]: ^?^ [See]{.underline} [Implementation of Commission\'s Equal
    Employment Opportunity Rules]{.underline}, 9 FCC Rcd 2047 (1994)
    (\"[Implementation of Commission\'s Equal Employment Opportunity
    Rules]{.underline}\").

[^6]: ^?^ [NPRM]{.underline}, 11 FCC Rcd at 5158-59.

[^7]: ^?^ 47 C.F.R. § 73.3612.

[^8]: ^?^ [King\'s Garden]{.underline}, 498 F.2d at 61.

[^9]: ^?^ NRB comments at 1. NRB states that more than 1,300 radio
    stations provide full-time religious programming. [Id]{.underline}.

[^10]: ^?^ [Id]{.underline}. at 2.

[^11]: ^?^ Section 334 of the Communications Act of 1934, as amended, 47
    U.S.C. § 334, prohibits the Commission from revising \"the
    regulations concerning equal employment opportunity as in effect on
    September 1, 1992 (47 C.F.R. 73.2080) as such regulations apply to
    television broadcast station licensees and permittees,\" as well as
    the EEO forms used by television licensees and permittees, except
    for necessary \"nonsubstantive technical or clerical revisions. . .
    . \" Accordingly, the action taken here can be and is binding only
    with respect to radio licensees and permittees.

[^12]: ^?^ [King\'s Garden]{.underline}, 498 F.2d at 61.

[^13]: ^?^ [Id]{.underline}.

[^14]: ^?^ NRB Comments at 1.

[^15]: ^?^ [See]{.underline} NRB Comments at 8-9; CLS Comments at 2-3;
    CIR Comments at 8.

[^16]: ^?^ NRB Comments at 12. [See]{.underline} CIR Comments at 10; CLS
    Comments at 10.

[^17]: ^?^ NRB Comments at 10.

[^18]: ^?^ [Id]{.underline}.

[^19]: ^?^ [Id]{.underline}. at 12.

[^20]: ^?^ [Corporation of the Presiding Bishop v. Amos]{.underline},
    483 U.S. 327, 334 (1987) [quoting]{.underline} [Hobbie v.
    Unemployment Appeals Commission of Florida]{.underline}, 480 U.S.
    136, 144-45 (1987) (footnote omitted).

[^21]: ^?^ [See]{.underline} [generally]{.underline} [EEOC v. Townley
    Engineering & Manufacturing Company]{.underline}, 859 F.2d 610
    (1988).

[^22]: ^?^ The RFA, [see]{.underline} 5 U.S.C. § 601 et. seq., has been
    amended by the Contract With America Advancement Act of 1996, Pub.
    L. No. 104‑121, 110 Stat. 847 (1996) (CWAAA). Title II of the CWAAA
    is the Small Business Regulatory Enforcement Fairness Act of 1996.

[^23]: ^?^ 11 FCC Rcd at 5183.

[^24]: ^?^ Comments of Joint Commenters at 119.

[^25]: ^?^ 11 FCC Rcd at 5183-84.

[^26]: ^?^ For this reason, the suggestions that I make above such as
    codification of our processing guidelines, if limited to radio
    stations, would not seem barred by section 334. As for my proposals
    as applied to television stations, legislative action may be
    required under that statute, as explained below.

[^27]: ^?^ Or, more accurately, they can be sure of their ability to do
    so 30 days after publication of this item in the Federal Register or
    upon receipt by Congress of a report under the Contract with America
    Advancement Act, whichever is sooner. *See* page 6.