**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

In the Matter of )

)

Review of the Commission's ) MM Docket No. 98-204

Broadcast and Cable )

Equal Employment Opportunity )

Rules and Policies )

and )

Termination of the ) MM Docket No. 96-16

EEO Streamlining Proceeding[^1] )

)

)

)

**REPORT AND ORDER**

**Adopted: January 20, 2000**; **Released: February 2, 2000**

By the Commission: Chairman Kennard and Commissioners Ness and Powell
issuing separate statements; Commissioner Tristani approving in part,
dissenting in part and issuing a statement; Commissioner Furchtgott-Roth
dissenting and issuing a statement.

TABLE OF CONTENTS

Paragraph

I. INTRODUCTION 1

II\. SUMMARY 5

III\. BACKGROUND 10

IV\. DISCUSSION 17

A.  Statutory Authority for EEO Program

> Requirements and Anti-Discrimination Rules 17

1.  Section 634: Explicit Authority to

> Regulate EEO Practices of Cable Entities,
>
> Including Multichannel Video Programming Distributors 17

2\. Broadcasters 20

a.  Section 334: Explicit Authority to

> Regulate EEO Practices of Television Broadcasters 22

b\. Congressional Ratification 23

c\. Section 309(j) 42

d\. Public Interest Mandate to

Promote Programming Diversity 48

3\. Annual Employment Reports 63

B. Broadcast and Cable EEO Rules, Policies, and Forms 65

1\. Anti-Discrimination Provisions 65

2\. Broadcast EEO Program Requirements 76

a\. Rules and Policies 76

i\. EEO Program and Related Provisions 76

ii\. Religious Broadcasters 149

iii\. Delegated Authority 162

b\. Forms 163

3\. Cable EEO Program Requirements 179

a\. Rules and Policies for EEO Program 179

b\. Forms 202

C. Constitutional Issues 210

V. CONCLUSION 229

VI\. PROCEDURAL MATTERS AND ORDERING CLAUSES 230

APPENDIX A: LIST OF COMMENTERS

APPENDIX B: FINAL REGULATORY FLEXIBILITY ANALYSIS

APPENDIX C: RULES

APPENDIX D: FORMS

**I. INTRODUCTION**

1.  In this *Report and Order*, we adopt a new broadcast equal
    employment opportunity ("EEO") Rule and policies,[^2] consistent
    with the D.C. Circuit's decision in *Lutheran Church - Missouri
    Synod v. FCC;*[^3] amend our EEO rules and policies applicable to
    cable entities,[^4] including multichannel video programming
    distributors ("MVPDs"),[^5] to conform them, as much as possible, to
    the broadcast EEO Rule; establish our authority to retain the
    anti-discrimination provisions of our broadcast EEO Rule; and
    terminate MM Docket Nos. 98-204 and 96-16, *Streamlining Broadcast
    EEO Rule and Policies*, 13 FCC Rcd 6322 (1998) ("*Order and Policy
    Statement*"). The new broadcast EEO Rule and modified EEO rules for
    cable entities, adopted herein, emphasize outreach in recruitment to
    all qualified job candidates and ban discrimination on the basis of
    race, color, national origin or gender.

2.  Pursuant to the Communications Act of 1934, as amended
    ("Communications Act"), this Commission is charged with the
    responsibility of regulating "interstate and foreign communications
    services so that they are available, so far as possible, to all
    people of the United States, without discrimination on the basis of
    race, religion, national origin, or sex..."[^6] The Commission is
    also mandated to license individuals and companies to use the radio
    spectrum as the "public interest, convenience, and necessity"
    require.[^7] While we have grappled over the years with the task of
    giving form and content to that statutory mandate, we have no doubt
    that it requires us to deny licenses to those who would discriminate
    on the basis of race, ethnicity or gender. Such persons do not have
    the basic character qualifications to hold a valuable government
    license. And the licenses that we grant to broadcasters are not like
    any others granted by government. They afford licensees the
    privilege and the power to air programming \-- entertainment, news,
    public affairs, educational \-- that exerts a powerful influence on
    our culture and shared values and helps shape and inform public
    opinion on myriad issues of public importance. We do not believe
    that a licensee who discriminates against minorities or women would
    be able or inclined to fulfill its responsibility as a public
    trustee to provide a program service that airs diverse viewpoints,
    enriches public debate, and is responsive to the needs and interests
    of all sectors of its community. We can expect no less of broadcast
    licensees or cable entities under the Communications Act.[^8]

3.  We require more of broadcasters and cable entities in this *Report
    and Order*, however, than merely refraining from discrimination. We
    require them to reach out in recruiting new employees beyond the
    confines of their circle of business and social contacts to all
    sectors of their communities. We believe that repeated hiring
    without broad outreach may unfairly exclude minority and women job
    candidates when minorities and women are poorly represented in an
    employer's staff \-- particularly when they are poorly represented
    in the ranks of management employees who make hiring decisions. It
    is not enough to say that one will not discriminate against anyone
    who applies for a job when not all have been given a fair
    opportunity to apply. Outreach in recruitment must be coupled with a
    ban on discrimination to effectively deter discrimination and ensure
    that a homogenous workforce does not simply replicate itself through
    an insular recruitment and hiring process.

4.  These goals would be sufficient in themselves to warrant
    nondiscrimination and outreach requirements. We believe that such
    requirements also serve an important, constructive function in
    fostering greater diversity of viewpoints and programming that is
    responsive to the interests of a diverse community. As discussed
    below, we harbor no illusion that members of any group share the
    same outlook or views. But we do believe that the record in this
    proceeding and human experience suggest that, if the group of people
    who make programming decisions at a broadcast station or cable
    system come from a wider variety of backgrounds with a greater range
    of human experience and social interactions, their programming
    decisions will better reflect the diversity of viewpoints in our
    pluralistic society than would programming decisions made by a
    homogenous workforce. And we hope and believe that, given the power
    and pervasiveness of the electronic media in our nation, programming
    that reflects the diverse views and interests present in our society
    will increase our understanding of those from different backgrounds,
    decrease the sense of isolation of minority groups, and help us
    build bridges across racial, ethnic and socioeconomic divides. We
    have no doubt that regulations that advance these goals would
    "encourage the larger and more effective use of radio in the public
    interest."[^9]

    **II. SUMMARY**

5.  The *Report and Order* addresses the concerns of the *Lutheran
    Church* court regarding the Commission\'s authority to promulgate an
    employment nondiscrimination rule. In the *Report and Order*, we
    confirm the existence of such authority and retain the
    anti-discrimination provisions of the broadcast and cable EEO rules.
    The *Report and Order* also discusses the statutory bases for the
    Commission's authority to promulgate EEO program requirements and
    describes the regulatory approach that we are adopting towards
    religious radio broadcasters.

6.  The *Report and Order* reinstates the requirement that broadcasters
    file annual employment reports (Form 395-B), which was suspended by
    the Commission following *Lutheran Church*, and retains the
    requirement that cable entities file annual employment reports (Form
    395-A or 395-M).[^10] The Commission will no longer use the
    employment profile data in the annual employment reports in
    screening renewal applications or assessing compliance with EEO
    program requirements. The Commission will use this information only
    to monitor industry employment trends and report to Congress.

7.  The EEO program requirements adopted in the *Report and Order*
    require that broadcasters and cable entities widely disseminate
    information about job openings to ensure that all qualified
    applicants, including minorities and women, are able to compete for
    jobs in the broadcast and cable industries. The requirements afford
    broadcasters and cable entities flexibility in designing their EEO
    programs while, at the same time, ensuring broad dissemination of
    information concerning every full-time vacancy, as well as effective
    enforcement of our EEO rules and policies. To enhance the success of
    their outreach, broadcasters and cable entities are also required to
    implement two supplemental recruitment measures: (i) notification of
    job vacancies to any recruitment organization that requests such
    notification; and (ii) a certain number of outreach efforts beyond
    the traditional recruitment that occurs in response to individual
    vacancies, such as job fairs, internship programs, training
    programs, mentoring programs, and interaction with educational and
    community groups.

8.  Although all broadcasters and cable entities will be required to
    widely disseminate information concerning job openings, they may
    choose not to use the supplemental recruitment measures if they
    believe that they can accomplish broad outreach without them.
    However, a broadcaster or cable entity who makes this election will
    be required to maintain records concerning the recruitment sources,
    race, ethnicity and gender of applicants so it can monitor whether
    its outreach efforts have been successful in achieving broad
    outreach to the community. If the data collected indicates that
    outreach has not been inclusive, a broadcaster or cable entity will
    be expected to adjust its outreach program accordingly. Thus, the
    rules we are adopting require a broadcaster of cable entity to
    analyze the effectiveness of its outreach program, and address any
    problems found.

9.  As in the past, broadcast station employment units with fewer than
    five full-time employees and cable employment units with fewer than
    six full-time employees will not be required to demonstrate
    compliance with the EEO program requirements. However, all other
    broadcasters and cable entities must file annually an EEO report in
    their public file, detailing their outreach efforts during the
    preceding year and the results of those efforts. Broadcasters also
    will be required to file a Certificate of Compliance every second,
    fourth and sixth year of the license term certifying compliance with
    the EEO Rule. Television stations and every radio station that is
    part of an employment unit with more than ten full-time employees
    will be required to file a copy of their EEO public file report
    midway through the license term with the FCC. This information will
    be analyzed as part of the Commission's mid-term review of a
    station's EEO program. Stations will also be required to file their
    EEO public file report with their renewal application and cable
    entities will be required to file their EEO public file report as
    part of the supplemental information required by statute to be filed
    every five years.

**III. BACKGROUND**

10. The Commission, in the *Notice of Proposed Rule Making*[^11] in this
    proceeding, proposed EEO outreach requirements that would be
    consistent with the decision rendered in *Lutheran Church*.[^12] The
    Court of Appeals held that the portions of the Commission's
    regulations requiring licensees to maintain an EEO program to
    recruit minorities were subject to the strict scrutiny applicable to
    racial classifications imposed by the federal government under
    *Adarand Constructors, Inc. v. Peña*.[^13] The court further held
    those requirements unconstitutional as applied to minorities.[^14]
    The court opined that this regulatory scheme "pressure\[s\] stations
    to maintain a work force that mirrors the racial breakdown of their
    'metropolitan statistical area,'"[^15] and thus injects racial
    considerations into hiring decisions. The court did not find that a
    station would be held in violation of the Commission's rules based
    solely on a statistical disparity between its employment profile and
    the percentage of minorities in the local labor force. However, it
    concluded that the requirement that stations evaluate the success of
    their EEO programs based on those statistics, in conjunction with
    the Commission's use of those statistics at renewal time, compelled
    licensees "to hire with an eye toward meeting the numerical target,"
    and thus resulted in individuals being granted a preference because
    of their race.[^16] In addition, while the court did not question
    the constitutionality of the Commission's anti-discrimination rule,
    it remanded to the Commission the question of its statutory
    authority to promulgate such a rule.[^17] The *NPRM* tentatively
    concluded that we have ample statutory authority to retain our EEO
    anti-discrimination rule,[^18] and we elaborate further on this view
    below.

11. On September 15, 1998, the court denied the Commission's petition
    for rehearing *en banc*. [^19] In doing so, the court issued a
    supplemental decision in which it indicated that its initial
    decision in the case should not be read to hold that any regulation
    encouraging broad outreach to, as opposed to the actual hiring of, a
    particular race would necessarily trigger strict scrutiny. The court
    also observed that not all race conscious measures adopted by the
    government are subject to strict scrutiny.[^20]

12. Against that backdrop, the Commission sought comment on numerous
    proposals and issues regarding changes to its broadcast EEO Rule and
    conforming changes to its cable EEO rules. Although the *Lutheran
    Church* decision did not directly affect cable entities, the
    Commission's cable EEO rules contain some of the same provisions
    that the court invalidated in *Lutheran Church*; therefore, to avoid
    possible constitutional problems, as well as to emphasize broad and
    inclusive recruitment outreach, we proposed new EEO provisions for
    both broadcasters and cable entities, including MVPDs.[^21]

13. In the *NPRM*, the Commission tentatively proposed EEO rules which
    removed all requirements that broadcast licensees and cable entities
    compare their employment profile with the local labor force. In
    addition, the Commission indicated that it would no longer compare
    individual broadcast licensees' or cable entities' employment
    profiles with the local labor force, even as a screening device. We
    proposed to retain the cable and broadcasting rules' general EEO
    policy/program requirements as outlined in 47 C.F.R. §§ 76.73(b) and
    73.2080(b), respectively. Further, we proposed to retain most of the
    cable and broadcasting rules' specific EEO program
    requirements.[^22]

14. The *NPRM* proposed several alternative recruitment approaches with
    the objective of ensuring the broadest dissemination of vacancy
    information. We asked generally for comments on ways the Commission
    could encourage entities to expand their pools of qualified
    applicants without creating any incentives to prefer minority and
    female applicants over other applicants.

15. Further, the *NPRM* proposed that entities be required to analyze
    their efforts to recruit, hire and promote in a nondiscriminatory
    fashion and address any difficulties in implementing their EEO
    programs. We solicited comments on how this analysis should be
    conducted.

16. The *NPRM* stimulated response from a broad range of commenters, who
    raised exceptional and thought-provoking ideas and proposals. Having
    reviewed the entire record in this proceeding, we have constructed a
    new EEO outreach program which we believe will accomplish our goal
    of ensuring broad outreach in recruitment while avoiding the
    constitutional infirmities identified by the court in *Lutheran
    Church* and reducing recordkeeping burdens to the extent consistent
    with maintaining an effective, enforceable program.

    **IV. DISCUSSION**

```{=html}
<!-- -->
```
A.  **Statutory Authority for EEO Program Requirements and
    Anti-Discrimination Rules**

1\. [Section 634: Explicit Authority to Regulate EEO Practices of Cable
Entities, Including Multichannel Video Programming
Distributors]{.underline}

17. We noted in the *NPRM* that the court's decision in *Lutheran
    Church* did not address the validity of our EEO rules for cable
    entities, which were not at issue in that case.[^23] We tentatively
    concluded that we have ample statutory authority under Section 634
    of the Communications Act for the continued enforcement of the cable
    EEO rules.[^24] Indeed, we noted that Section 634 *requires* us to
    enforce EEO rules for cable entities. Nevertheless, because certain
    provisions in the cable EEO rules are similar to those provisions in
    the broadcast EEO Rule found to be unconstitutional in *Lutheran
    Church*, we sought comment on whether the Commission has statutory
    authority to modify those rules to avoid constitutional problems.

18. We conclude that the Commission is required by Section 634 to
    enforce EEO rules for the cable industry, but that we have
    considerable latitude under the statute to revise the cable EEO
    rules. Congress built into Section 634 flexibility for the
    Commission to implement the regulatory scheme by granting the
    Commission rulemaking authority rather than simply prescribing the
    cable EEO requirements by statute; by stating in Section 634(d)(2)
    that the "rules shall specify the terms under which" an entity shall
    take the actions specified in that section;[^25] and by providing in
    Section 634(d)(4) that the Commission may amend the cable EEO rules
    "from time to time to the extent necessary to carry out the
    provisions of this section." We believe that our broad rulemaking
    authority under Section 634(d)(2) and 634(d)(4) permits us to adopt
    new, race-neutral, inclusive outreach requirements and to revise the
    annual employment reports (Forms 395-A and 395-M) and Supplemental
    Investigation Sheets ("SIS" or "SIS forms") filed by cable entities
    to make them consistent with our modified cable EEO rules.
    Commenters agree that Section 634 explicitly authorizes the
    Commission to modify its cable EEO regulations to advance the
    congressional goals identified in the statute.[^26]

19. Additionally, by stating in Section 634(d)(2) that the Commission is
    to adopt rules implementing the requirements of that section "to the
    extent possible," Congress recognized that it may not be possible
    for the Commission to fully implement all of the provisions in that
    section. Thus, it only obligated the Commission to implement the
    listed requirements "to the extent possible," consistent with other
    conflicting requirements or limitations. The court's decision in
    *Lutheran Church* delineates constitutional limitations with which
    we must reconcile the cable EEO rules. We believe that Section
    634(d)(2) permits the Commission to eliminate those provisions of
    the cable EEO rules that are similar to those struck down by the
    court in *Lutheran Church* because it is not "possible" for the
    Commission to enforce a provision that a court has found
    unconstitutional. Accordingly, we modify the cable EEO rules in this
    *Report and Order* to remove provisions similar to those found
    unconstitutional in *Lutheran Church*. We also revise the annual
    employment reports and SIS forms filed by cable entities to conform
    them with our modified cable EEO rules.

2\. [Broadcasters]{.underline}

20. The court specifically directed us in *Lutheran Church* to consider
    our authority to promulgate an employment nondiscrimination rule.
    Further, while the court struck down the broadcast EEO program
    requirements on constitutional grounds and did not hold that we lack
    statutory authority to promulgate such rules, it questioned our
    reliance on our public interest mandate to foster diversity of
    programming as a basis for the broadcast EEO Rule. Accordingly, we
    discuss here our statutory authority to retain our
    anti-discrimination rule and to adopt new EEO outreach requirements
    for broadcasters.

21. Based on the record in this proceeding, we have concluded that we
    have ample statutory authority to retain our EEO anti-discrimination
    rule and, consistent with the constitutional standards established
    in *Lutheran Church*, to promulgate new EEO outreach requirements.
    First, Congress has explicitly authorized us to regulate the EEO
    practices of television broadcasters and ratified the Commission's
    authority to adopt EEO rules for radio broadcasters. Second, we have
    authority to adopt rules fostering equal employment in the broadcast
    industry in order to further the statutory goal of fostering
    minority and female ownership in the provision of commercial
    spectrum-based services, reflected in Section 309(j) of the
    Communications Act. Finally, equal employment of minorities and
    women furthers the public interest goal of diversity of programming,
    both directly and by enhancing the prospects for minority and female
    ownership.

a\. [Section 334: Explicit Authority to Regulate EEO Practices of
Television Broadcasters]{.underline}

22. In 1992, Congress enacted Section 334 of the Communications Act as
    part of the Cable Television Consumer Protection and Competition Act
    of 1992^.^[^27] Section 634 provides that "the Commission shall not
    revise:"

\(1\) 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

\(2\) the forms used by such licensees and permittees to report
pertinent employment data to the Commission.[^28]

The Conference Report accompanying this legislation indicates that
Section 634 "codifies the Commission's equal employment opportunity
rules, 47 C.F.R. 73.2080" for television licensees and permittees.[^29]
Section 334 thus grants the Commission explicit authority to regulate
the EEO practices of television broadcasters. Indeed, it *requires* the
Commission regulate the EEO practices of television broadcasters. Thus,
as is the case with respect to cable operators and other multichannel
programming distributors, the Commission has express statutory authority
to regulate the EEO practices of television broadcasters.

b\. [Congressional Ratification]{.underline}

23. We noted in the NPRM that the Commission has maintained
    nondiscrimination and EEO program requirements for broadcasters for
    over 30 years. In 1968, the Commission adopted a Memorandum Opinion
    and Order in which it concluded that the national policy against
    discrimination and the fact that broadcasters are licensed under the
    Communications Act to operate in the public interest required the
    Commission to consider allegations of employment discrimination in
    licensing broadcast stations.[^30] The Commission expressed its view
    that deliberate discrimination in employment is inconsistent with a
    broadcaster's responsibility to serve all elements of its
    community.[^31] In 1969, the Commission adopted rules prohibiting
    broadcast stations from discriminating against any person in
    employment on the basis of race, color, religion, or national
    origin, and requiring stations to maintain a program designed to
    assure equal opportunity in every aspect of station employment.[^32]
    It reiterated its view that discriminatory employment practices are
    incompatible with a station's obligation to operate in the public
    interest, and relied on Sections 4(i), 303, 307, 308, 309 and 310 in
    adopting the new rules. Relying on its authority to license and
    regulate broadcasters in the public interest, the Commission has
    revised and extended its rules on numerous occasions since 1969 to*,
    inter alia*, refine its EEO program requirements, require licensees
    to file these programs and other statistical employment information
    with the Commission, and prohibit discrimination against, and
    require outreach to, women.[^33]

24. Over the last 30 years, the Commission has vigorously enforced its
    EEO requirements, sanctioning broadcast licensees in numerous cases
    for failing to comply fully with those requirements. Commission
    decisions enforcing the EEO requirements have been challenged both
    by licensees who have been sanctioned for noncompliance[^34] and by
    petitioners who believed that Commission enforcement was not
    vigorous enough.[^35] Indeed, the Court of Appeals for the D.C.
    Circuit held more than 20 years ago that the Commission *must*
    investigate broadcasters' employment practices and, in assessing the
    character qualifications of broadcast licensees, consider whether
    they have engaged in intentional employment discrimination.[^36] And
    the Supreme Court observed in the seminal case addressing the scope
    of an agency's authority to serve the "public interest" that FCC
    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."[^37]

25. We observed in the *NPRM* that during the three decades that the
    Commission has administered EEO program requirements and
    antidiscrimination rules, Congress has repeatedly expressed
    awareness of the rules and has not only acquiesced in them, but has
    also referred to them approvingly, confirming our view that the
    Commission has statutory authority to promulgate these rules. We
    continue to believe that Congress has ratified the Commission's
    authority to adopt and enforce EEO requirements against broadcasters
    under its statutory mandate to license and regulate broadcasters in
    the public interest.[^38]

26. There is a substantial body of case law establishing the principle
    that congressional approval and ratification of administrative
    interpretations of statutory provisions, including those granting
    jurisdiction to regulate, can be inferred from congressional
    acquiescence in a long-standing agency policy or practice.[^39] The
    inference of ratification from congressional acquiescence in the
    Commission's exercise of authority to adopt and enforce EEO
    regulations is particularly strong. As noted above, the Commission
    has consistently taken the position over a very long period of time
    \-- 30 years \-- that it has authority under its public interest
    mandate to adopt and enforce EEO rules, and the obligations arising
    under those rules have become a major component of broadcasters'
    obligation to serve the public interest.[^40] Moreover, as noted
    above, the Commission has enforced its regulations vigorously. These
    are not obscure agency rules that could have gone unnoticed by
    Congress.

27. But congressional ratification of the Commission's authority to
    adopt EEO rules need not be inferred solely from congressional
    acquiescence in the Commission's exercise of that authority over a
    period of many years. Congress has, in two major pieces of
    legislation, *expressly* approved and ratified the Commission's
    authority to regulate the EEO practices of its broadcast licensees
    and other media entities as well.

28. In 1984, Congress enacted Section 634 of the Communications Act[^41]
    as part of the Cable Communications Policy Act of 1984.[^42]
    Although the Commission at that time already had rules in place
    regulating the EEO practices of cable operators as well as
    broadcasters, Section 634 was intended to "codif\[y\] and
    strengthen\[\] the Commission's existing equal employment
    opportunity regulations."[^43] Section 634 granted the Commission
    broad authority to adopt rules banning employment discrimination by
    cable operators and requiring cable operators to "establish,
    maintain, and execute a positive continuing program of specific
    practices designed to ensure equal opportunity in every aspect of
    its employment policies and practices ...."[^44]

29. The legislative history of Section 634 makes it unmistakably clear
    that Congress believed that the Commission already possessed
    authority to regulate the EEO practices of mass media entities \--
    broadcast as well as cable. The House Commerce Committee Report on
    the bill proposing the provisions on which Section 634 was based
    explicitly confirmed the Commission's authority to adopt EEO rules.
    The House Commerce Committee stated:

> *It is well established that the Commission has the authority to
> regulate employment practices in the communications industry*. Among
> the Commission's efforts in the equal employment opportunity (EEO)
> area over the last several years has been the enforcement of
> employment standards in the cable industry. Section 634 endorses and
> extends those standards.
>
> Because of the potentially large impact cable programming and other
> services provided by the cable industry has on the public, the
> employment practices of the industry have an importance greater than
> that suggested by the number of its employees. The committee strongly
> believes that *equal employment requirements are particularly
> important in the mass media area* where employment is a critical means
> of assuring that program service will be responsive to a public
> consisting of a diverse array of population groups.[^45]

30. In addition to the explicit recognition of the Commission's broad
    and "well established" authority to regulate employment practices in
    the communications industry, the legislative history of Section 634
    shows that Congress viewed the legislation as codifying,
    strengthening and building upon the Commission's pre-existing
    regulatory scheme, which it viewed as well within the Commission's
    statutory authority. For example, the House Report states that the
    legislation "codifies and strengthens the Commission's existing
    equal employment opportunity regulations."[^46] Further, it states
    that the statutory definition of the entities that are subject to
    the EEO requirements "endorses the Commission's current practice of
    reviewing compliance with EEO standards by cable systems and other
    employment units with more than 5 employees, and extends the
    applicability of EEO requirements to headquarters operations."[^47]
    Similarly, it states that the provisions specifying the requirements
    for Commission EEO rules "conform in large part to the Commission's
    required EEO program under existing regulations."[^48] Clearly,
    Congress recognized and ratified the Commission's broad authority to
    regulate the EEO practices of mass media entities.

31. Additional evidence of congressional ratification can be found in
    the Cable Television Consumer Protection and Competition Act of
    1992,[^49] which further strengthened the cable EEO requirements,
    extended those requirements to all MVPDs, and codified the
    Commission's EEO program and nondiscrimination requirements as
    applied to broadcast television licensees. In so doing, Congress
    confirmed the importance of EEO rules for the electronic media
    generally. Moreover, Congress once again explicitly acknowledged the
    existence of the Commission's broadcast and cable EEO requirements
    and proclaimed that vigorous enforcement of those rules was
    necessary. Section 22(a) of the 1992 Cable Act provides:

> \(1\) *despite the existence of regulations governing equal
> employment* *opportunity*, females and minorities are not employed in
> significant numbers in positions of management authority in the *cable
> and broadcast television industries*;
>
> \(2\) increased numbers of females and minorities in positions of
> management authority in the *cable and broadcast television
> industries* advances the Nation's policy favoring diversity in the
> expression of views in the electronic media; and
>
> \(3\) rigorous enforcement of equal employment opportunity rules and
> regulations is required in order to effectively deter racial and
> gender discrimination.[^50]

By extending the cable EEO requirements to every entity that provides
multiple channels of video programming, such as MMDS operators and DBS
licensees, Congress was building upon, and filling in the gaps in, the
Commission's regulatory scheme, ensuring that *every* electronic mass
media provider would be subject to EEO regulations enforced by the
Commission.

32. As noted above, the 1992 Cable Act not only strengthened and
    extended the cable EEO requirements, it also codified the
    Commission's EEO requirements for broadcast television stations in
    Section 334 of the Act.[^51] Section 334 thus explicitly recognizes
    the existence of the Commission's broadcast EEO Rule and requires
    the Commission to keep its EEO requirements in effect for television
    broadcasters.

33. Furthermore, Section 22(g) of the 1992 Cable Act required the
    Commission to report to Congress on "the effectiveness of \[the
    Commission's\] procedures, regulations, policies, standards, and
    guidelines in promoting the congressional policy favoring increased
    employment opportunity for women and minorities in positions of
    management authority." The Commission was required to include in
    that report "such legislative recommendations to improve equal
    employment opportunity in the broadcasting and cable industries as
    it deems necessary." We do not believe that Congress would have
    directed the Commission to review the effectiveness of its broadcast
    and cable EEO policies and regulations then in effect, and recommend
    whether further legislative action was necessary, had Congress not
    believed that those policies and regulations were within the
    Commission's lawful authority.[^52] Thus, Section 22(g) is further
    evidence of Congress' affirmative approval of the Commission's
    authority to adopt equal employment opportunity requirements for
    broadcasters.[^53]

34. It is within this historical context that the Commission's statutory
    authority to regulate the EEO practices of broadcast licensees must
    be viewed. As discussed above, the Supreme Court has inferred
    congressional ratification of administrative action from "nothing
    more than silence in the face of an administrative policy."[^54]
    Here, the inference of congressional ratification rests on far
    firmer ground, including explicit statements confirming the
    Commission's authority to regulate the EEO practices of media
    companies and legislation that codified and expanded the reach of
    Commission EEO regulations.[^55] Under these circumstances, the
    inference of congressional ratification is inescapable.[^56]

35. Notably, despite voluminous comments filed in this proceeding, only
    one commenter challenges the Commission's position that its
    statutory authority to regulate the EEO practices of broadcasters
    has been ratified by Congress. Evening Post Company and Great Empire
    Broadcasting, Inc. (Evening Post) argues that Congress has not
    ratified the Commission's authority to regulate EEO practices of
    broadcasters because: (i) Section 334 of the Communications Act is
    framed in negative terms and thus limits, rather than expands, the
    Commission's authority; and (ii) Section 334 of the Communications
    Act was enacted by the 1992 Cable Act, thus somehow diminishing the
    import of the findings in Section 22(a) of the Cable Act regarding
    the need for EEO regulation of cable and broadcast television.
    Evening Post also asserts that "it could be argued" that Congress'
    grant to the Commission of explicit authority to adopt rules for
    cable and multichannel video program distributors indicates that it
    did not intend that the Commission would have statutory authority to
    regulate EEO practices in the broadcast industry.[^57]

36. Evening Post's argument is belied by both the facts and the law. As
    a general matter, we note first that Evening Post fails to
    acknowledge congressional acquiescence in the Commission's exercise
    of its jurisdiction to regulate EEO practices of broadcasters for
    the past 30 years. More specifically, though it is true that Section
    334 is drafted in negative terms, that provision requires the
    Commission, in substance, to continue applying to television
    broadcasters the EEO rules that were in effect when Section 334 was
    enacted. Indeed, the Conference Report on the 1992 Cable Act makes
    it clear that this was Congress' intent.[^58] However drafted, we
    cannot see how this provision can be viewed as anything other than
    an endorsement of the Commission's authority to regulate the EEO
    practices of broadcast television licensees and a directive that it
    continue to do so.[^59] Further, we fail to see how the fact that
    Section 334 of the Communications Act was enacted by the 1992 Cable
    Act in any way diminishes the import of the findings in Section
    22(a) of the Cable Act. On the contrary, it makes even clearer their
    relevance to the Commission's authority to regulate broadcasters.

37. Evening Post's final argument \-- that Congress' explicit grant to
    the Commission of authority to regulate the EEO practices of cable
    entities and other MVPDs in the 1992 Act indicates that it "did not
    intend for the Commission to have statutory authority to take action
    on broadcast EEO matters" \-- is specious and is directly
    contradicted by the legislative histories of the 1984 and 1992 Cable
    Acts. Evening Post's argument might have some force if the original
    Communications Act of 1934 had granted the Commission authority to
    regulate the EEO practices of certain specified entities but *not*
    the EEO practices of broadcasters. One could then argue that the
    omission of authority to regulate broadcasters' EEO practices was
    intentional. But Congress was not writing on a blank slate when it
    granted the Commission explicit statutory authority to regulate
    cable EEO practices in 1984 and expanded that authority in 1992 to
    include all MVPDs. As discussed above, it *knew* at that time that
    the Commission had been regulating the EEO practices of broadcast
    licensees since 1969 and it explicitly *acknowledged* the
    Commission's statutory authority to do so. As the large body of case
    law cited above establishes, Congress would have had to
    affirmatively indicate its *disapproval* of the Commission's
    long-standing, consistent and vigorous exercise of its authority to
    regulate the EEO practices of broadcasters in order to avoid the
    inference of congressional ratification. It did the opposite,
    recognizing the Commission's "well-established" authority and
    indicating that its intent was to endorse and strengthen the
    Commission's EEO regulations. The legislative record thus belies
    Evening Post's suggestion that Congress did not intend the
    Commission to have statutory authority to regulate broadcast EEO
    practices.

38. There is another, particularly compelling reason to find in the
    current statutory context that Congress has ratified our authority
    to regulate the EEO practices of broadcasters. In resolving issues
    of administrative or judicial jurisdiction, the Supreme Court has
    held that any interpretation of congressional intent that will
    result in a "bizarre jurisdictional patchwork" is to be disfavored
    absent legislative history or a persuasive functional argument to
    the contrary.[^60] In this case, Congress has *explicitly* granted
    the Commission authority to regulate the EEO practices of television
    broadcasters, cable entities, and all other MVPDs, including such
    relative newcomers as DBS and MMDS operators.[^61] Thus, rejecting
    the inference of congressional ratification would leave us in the
    anomalous situation of having jurisdiction to regulate the EEO
    practices of broadcast television and cable television providers and
    MVPDs, but *not* radio broadcasters. There is no indication in the
    legislative history that this was Congress' intent. On the contrary,
    Congress has indicated its belief that Commission enforcement of EEO
    rules for the electronic media is essential and, building upon the
    foundation established by the Commission's broadcast EEO Rule,
    Congress enacted legislation to ensure that *every* medium of mass
    communication is subject to such rules. It would defeat that clear
    congressional intent and create a "bizarre jurisdictional patchwork"
    for us to hold that we lack statutory authority to enforce EEO rules
    against radio stations \-- the oldest and arguably the most
    pervasive of the electronic media.

39. For the foregoing reasons, we find that Congress has granted us
    explicit authority to regulate the EEO practices of television
    licensees and has ratified our authority to regulate the EEO
    practices of radio licensees. Whatever uncertainty may have existed
    30 years ago concerning whether the Commission's public interest
    mandate was broad enough to authorize EEO regulation has now been
    resolved by congressional acquiescence and both tacit and explicit
    congressional approval.

40. Although we sought and received extensive public comment on the
    nexus between EEO regulation and our public interest mandate to
    foster diversity of programming, we have concluded that resolution
    of that issue is not dispositive, in and of itself, of our statutory
    authority for two reasons. First, as discussed above, Congressional
    ratification provides an independent basis for our authority.
    Second, it is clear from reviewing the 1984 and 1992 Cable Acts and
    their legislative histories that Congress's purpose in granting us
    authority to regulate the EEO practices of video providers and in
    ratifying our authority to regulate the EEO practices of
    broadcasters was partly but not solely to foster diversity of
    programming. Congress endorsed recruitment and nondiscrimination
    requirements for two distinct purposes: to foster diverse
    programming by increasing the number of women and minorities in
    positions that have an impact on programming decisions, *and* to
    deter racial and gender discrimination. Both are set forth as
    express purposes of the cable EEO rule amendments enacted in 1992.
    As noted above, Congress stated that EEO rules both "advance\[\] the
    Nation's policy favoring diversity in the expression of views in the
    electronic media" and are "required in order to effectively deter
    racial and gender discrimination."[^62] Congress plainly thought it
    important to increase the number of minorities and women in
    upper-level positions in order to further the national policy
    favoring the expression of diverse views and perspectives in the
    electronic media.[^63] But it is also clear that Congress did not
    limit the EEO requirements to upper-level positions. Section
    634(d)(1) required the Commission to amend its cable EEO rules,
    including its recruitment rules, to "promote equality of employment
    opportunities for females and minorities in each of the job
    categories itemized" in section 634(d)(3). Those include *all*
    categories of employment, including such categories as "semiskilled
    operatives" and "unskilled laborers" that appear to have no direct
    influence on programming.[^64] Similarly, the broadcast EEO Rule
    that Section 334 codified applied to all categories of employment,
    not just management or program-related positions. We believe that
    Congress required us to adopt and enforce EEO program requirements
    with respect to all job categories, including lower-level jobs,
    because word-of-mouth recruitment practices may be inherently
    discriminatory when minorities and women are poorly represented on
    an employer's staff \-- particularly when they are scarce in the
    management ranks where hiring decisions are made. Outreach in
    recruitment, as well as a nondiscrimination requirement, is
    necessary to deter discrimination in such circumstances so that the
    homogenous workforce does not simply replicate itself.

41. Since Congress clearly intends that we apply recruitment and other
    EEO requirements to *all* job categories in order to deter
    discrimination, we have concluded that we should apply our new EEO
    requirements to all job categories even if we were to conclude that
    some of those categories have no impact on programming decisions.
    Therefore, we conclude that whether there is a nexus between EEO
    regulation for all job categories and our public interest mandate to
    foster diversity of programming is not dispositive of our statutory
    authority**.** We nevertheless address in the following sections the
    nexus between our EEO rules and our statutory mandates to foster
    diversity of programming and minority ownership because we believe
    that the rules we adopt today further, and thus find additional
    statutory support in, those mandates.

c\. [Section 309(j)]{.underline}

42. In the *NPRM*, we observed that Section 309(j) of the Communications
    Act establishes a congressional policy favoring the dissemination of
    licenses among a wide variety of applicants, including members of
    minority groups and women, as part of a broad policy of fostering
    economic opportunity.[^65] Section 309(j), as amended in 1997,
    requires the Commission to award all commercial broadcast licenses
    for which mutually exclusive applications are filed (except for
    initial digital television applications) by competitive
    bidding.[^66] In implementing the competitive bidding requirements,
    the Commission must:

promot\[e\] economic opportunity and competition and ensur\[e\] that new
and innovative technologies are readily accessible to the American
people by avoiding excessive concentration of licenses and by
disseminating licenses among a wide variety of applicants, including
small businesses, rural telephone companies, and businesses owned by
members of minority groups and women ....[^67]

Additionally, the Commission must promote "economic opportunity for a
wide variety of applicants, including small businesses, rural telephone
companies, and businesses owned by members of minority groups and
women," and ensure that those entities "are given the opportunity to
participate in the provision of spectrum-based services, and, for such
purposes, consider the use of tax certificates, bidding preferences, and
other procedures ...."[^68]

43. We tentatively concluded in the *NPRM* that Section 309(j) provides
    statutory authority to implement new EEO rules because the statutory
    goal of fostering minority and female ownership in the provision of
    commercial spectrum-based services would be furthered by
    nondiscrimination and outreach requirements, which are designed to
    foster equal employment opportunities for minorities and women in
    the broadcast industry.[^69] We stated our belief that employment in
    the broadcasting industry provides minorities and women with the
    skills needed to acquire and operate a broadcast station and may
    help them in becoming aware of ownership opportunities. Such
    employment may also facilitate their acquisition of capital needed
    to purchase a broadcast station, as financing sources are generally
    more willing to work with borrowers that have a track record in the
    business they seek to own and operate. Furthermore, we noted that we
    have previously concluded that there is a link between the policies
    furthered by our EEO rules and the fostering of ownership by
    minorities and women.[^70] We also noted that Congress appears to
    have concluded that such a link exists. In codifying the cable EEO
    requirements in 1984, the House Commerce Committee asserted that "a
    strong EEO policy is necessary to assure that there are sufficient
    numbers of minorities and women with professional and management
    level experience within the cable industry, so that there are
    significant numbers of minorities and women with the background and
    training to take advantage of existing and future cable system
    ownership opportunities."[^71] We asked commenters to submit
    evidence establishing the nexus between employment opportunities for
    minorities and women and ownership opportunities.

44. After considering the comments received in response to the *NPRM*,
    we conclude that Section 309(j) provides statutory authority to
    implement new EEO rules. We disagree with commenters who maintain
    that our reliance on Section 309(j) is misplaced because it relates
    to the use of competitive bidding for commercial broadcast
    licenses.[^72] As we pointed out in the *NPRM*, the reference in
    Section 309(j) to tax certificates, a preferential tax treatment
    available upon the sale of broadcast stations and cable systems to
    minorities, suggests that Congress did not intend to limit the
    Commission's authority under Section 309(j) to measures directly
    associated with the competitive bidding process.

45. Moreover, we believe that there is a strong nexus between employment
    of minorities and females and ownership opportunities. Numerous
    commenters support this view.[^73] MMTC asserts that employment
    opportunities help minorities obtain the skills needed to become
    owners.[^74] AWRT states that increasing the number and type of
    employment opportunities available for women and minorities will
    increase the number of women and minorities who seek ownership
    opportunities because training and experience are "critical
    elements" in deciding to seek ownership of broadcast and cable
    facilities.[^75] AWRT also states that an informal survey of its
    membership reveals that those members who are, or have been, owners
    of broadcast facilities had significant prior experience working in
    the industry and view their employment experiences as integral to
    both their decision to move up to ownership and their success as an
    owner.[^76] According to NOW, the connection between management
    experience and ownership opportunities is "fundamental."[^77] NOW
    posits that "\[w\]omen and minorities have a particular need for
    broadcast experience because they typically must be more qualified
    than their White male counterparts in order to find financial
    backing. Under-capitalization poses one of the most significant
    obstacles to women and minorities hoping to purchase mass media
    outlets."[^78]

46. Commenters also cite the experiences of broadcast station owners and
    provide affidavits from numerous broadcast station owners as
    evidence of the nexus between employment and ownership
    opportunities.[^79] Many of these owners describe how they or their
    colleagues started in entry-level or even internship positions and
    worked their way up the ladder to management positions and then to
    ownership.[^80] In addition, many of the owners attest that
    employment opportunities provide minorities and women with the
    skills and training needed to acquire and successfully operate
    stations;[^81] that lack of access to capital is one of the greatest
    impediments to broadcast station ownership by minorities and
    women;[^82] and that broadcast experience, particularly management
    experience, is essential for minorities and women to secure
    financing to acquire stations.[^83] Further, a number of the station
    owners express concern that, without any EEO outreach requirements,
    minorities and women will not have the opportunity to obtain the
    training and experience needed to move up to station ownership.[^84]

47. NAB rejects this evidence as "irrelevant or anecdotal at best."[^85]
    However, NAB does not explain why it believes that this evidence is
    irrelevant, nor does it explain why it thinks that the Commission
    should disregard anecdotal evidence from an array of individuals
    with extensive experience in the broadcast industry.[^86] Another
    commenter argues that the proposed broadcast EEO Rule rests upon the
    unsupported assumption that "all broadcast employees are on a
    lifetime broadcast career track, from entry level through
    programming and management ranks to ownership."[^87] This commenter
    asserts that many employees in fact leave broadcast stations to go
    to work for nonbroadcast employers[^88] and cites numerous examples
    of minority and female employees who left broadcasting to pursue
    other careers.[^89] This argument misses the point. It is not
    necessary to find that all minority and female employees, or even a
    majority of minority and female employees, move up through the ranks
    to ownership in order to establish a nexus between minority and
    female employment and ownership opportunities. Rather, we think it
    is sufficient that the employment of minorities and women in the
    broadcast industry greatly enhances the opportunities for minorities
    and women to own broadcast stations and that, without such
    employment, ownership opportunities for minorities and women will be
    diminished. Based on the record, we conclude that this is the case.

d\. [Public Interest Mandate to Promote Programming
Diversity]{.underline}

48. An additional statutory basis for new EEO rules is grounded in the
    Commission's authority to regulate broadcasting to serve the public
    interest and promote diversity of programming.[^90] The Commission
    has broad authority under the Communications Act to regulate and
    license broadcasters as the public convenience, interest, or
    necessity requires.[^91] Moreover, Congress amended Section 1 of the
    Communications Act in 1996 to make it clear that the Commission's
    mandate is to regulate interstate and foreign communications
    services so that they are "available, so far as possible, to all
    people of the United States, *without discrimination on the basis of
    race, color, religion, national origin, or sex* ...."[^92] This
    recent amendment, which applies to all entities subject to the
    Communications Act,[^93] amplifies the Commission's general public
    interest mandate to ensure that broadcasting and other programming
    services serve the needs and interests of all sectors of the
    community, and indicates more specifically that such services shall
    be provided to all Americans without discrimination on the basis of
    race or any other suspect classification. Further, in Section 257(b)
    of the Communications Act,[^94] Congress specifically identifies
    "diversity of media voices" as one of the "policies and purposes" of
    the Communications Act.

49. A broadcaster can more effectively fulfill the needs of its
    community, and therefore serve the public interest, when it provides
    equal employment opportunity to all applicants and employees
    regardless of race, ethnic origin, color, or religion. Such a
    program furthers one of the Commission's main objectives, to promote
    diverse programming \-- programming that airs different points of
    view and reflects the needs and interests of all sectors of the
    community, including minorities and women. As the Commission stated
    in *Streamlining* and the *NPRM*, we do not assume that minority and
    female employment will always result in minority and female-oriented
    programming. Nor do we believe that all minorities or all women
    share the same viewpoints.[^95] Nonetheless, we believe that, as
    more minorities and women are employed in the broadcast industry, it
    is more likely that varying perspectives will be aired and that
    programming will be oriented to serve more diverse interests and
    needs than would be the case if stations employed few minorities and
    women.[^96]

50. Congress has recognized the nexus between diversity of employment
    and diversity of programming, as evidenced by the legislative
    history of the Cable Television Consumer Protection and Competition
    Act of 1992, where it noted that:

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 responsive to a public consisting
of a diverse array of population groups.'[^97]

51. Moreover, the Supreme Court has recognized that the FCC has
    statutory authority to regulate the employment practices of its
    licensees as a way of fostering diversity of viewpoints in
    programming. Such regulation, the Court stated, "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."[^98] In addition, in *Metro Broadcasting, Inc. v.
    FCC,*[^99] the Supreme Court held that two minority ownership
    policies \-- the award of an "enhancement" for minority ownership in
    comparative proceedings for new broadcast licenses and the minority
    "distress sale" policy \-- were substantially related to the
    important governmental objective of "enhancing broadcast diversity,"
    and thus survived an intermediate level of equal protection
    scrutiny. Although the *Adarand* decision reversed *Metro
    Broadcasting* to the extent that *Metro Broadcasting* held that
    federal racial classifications are subject to a less rigorous
    standard of scrutiny than state racial classifications, it did not
    alter the recognition that the Commission's statutory mandate
    includes fostering a diversity of views in the broadcast
    service.[^100]

52. Contrary to the views expressed by some commenters, recognizing that
    there is a nexus between diversity of employment and diversity of
    programming does not amount to stereotyping. As the Court noted in
    *Metro Broadcasting*, with respect to the minority ownership
    policies at issue in that case:

The judgment that there is a link between expanded minority ownership
and broadcast diversity does not rest on impermissible stereotyping.
Congressional policy does not assume that in every case minority
ownership and management will lead to more minority-oriented programming
or to the expression of a discrete 'minority viewpoint' on the airwaves.
Neither does it pretend that all programming that appeals to minority
audiences can be labeled 'minority programming' or that programming that
might be described as 'minority' does not appeal to nonminorities.
Rather, both Congress and the FCC maintain simply that expanded minority
ownership of broadcast outlets will, in the aggregate, result in greater
broadcast diversity. A broadcasting industry with representative
minority participation will produce more variation and diversity than
will one whose ownership is drawn from a single racially and ethnically
homogeneous group.[^101]

The Court added:

While we are under no illusion that members of a particular minority
group share some cohesive, collective viewpoint, we believe it a
legitimate inference for Congress and the Commission to draw that as
more minorities gain ownership and policymaking roles in the media,
varying perspectives will be more fairly represented on the
airwaves.[^102]

53. Thus, it is well established under *NAACP v. FPC*, *Metro
    Broadcasting* and Supreme Court decisions that preceded them, that
    fostering diversity of viewpoints is a goal encompassed by the
    Commission's public interest mandate.[^103] Indeed, "it has long
    been a basic tenet of national communications policy" that "the
    widest possible dissemination of information from diverse and
    antagonistic sources is essential to the welfare of the
    public."[^104] The Court has noted that the benefits of diversity
    are not limited to minorities but, rather, redound to all viewers
    and listeners.[^105]

54. The courts have also recognized that there is a nexus between the
    identity of media owners and employees and diversity of programming.
    The minority ownership policies at issue in *Metro Broadcasting*
    withstood intermediate scrutiny because the Court found they were
    "substantially related" to the statutory goal of promoting diversity
    of information and viewpoints on the air waves.[^106] Accordingly,
    the Court affirmed the FCC's judgment that there is a nexus between
    rules fostering minority ownership of broadcast stations and the
    statutory goal of fostering diversity of viewpoints.[^107] Further,
    in *Bilingual Bicultural Coalition on Mass Media, Inc. v. FCC*, the
    D.C. Circuit recognized the Commission's authority to enforce both
    employment "affirmative action" and anti-discrimination rules in the
    license renewal context to advance its public interest mandate to
    foster diverse programming. The court held that the Commission had
    abused its discretion by unconditionally renewing a broadcast
    license where a substantial question of fact had been raised
    regarding whether the licensee had engaged in employment
    discrimination.[^108]

55. In *Lutheran Church*, the court concluded that the Commission's
    broadcast EEO program requirements were not narrowly tailored to
    advance the stated interest in diversity because the requirements
    applied to low-level positions that lack influence over programming.
    In the *NPRM*, we stated our belief that program content is not
    determined solely by the individuals at the station with authority
    to select programming, but may also be influenced by interaction
    between these individuals and other station employees, which exposes
    the former to views and perspectives of the latter. We also noted
    that low-level positions provide a way for individuals with little
    or no communications experience, including minorities and women, to
    enter the broadcast and cable industries. This, in turn, could lead
    to higher-level positions of greater responsibility that could
    affect programming and/or provide the experience desired by
    financial institutions to finance ownership in the broadcast and
    cable industries.[^109] We sought comment on these issues.[^110]

56. NAB and broadcasters question whether a nexus exists between
    employment of minorities and ownership opportunities. NAB asserts
    that the Commission has offered no evidence to support the existence
    of such a nexus.[^111] In addition, these commenters question
    whether there is a nexus between minority and female employment and
    diverse programming.[^112] NAB notes that the court in *Lamprecht v.
    FCC*,[^113] found the female ownership preference policy
    unconstitutional because it found no statistically meaningful link
    between ownership by women and programming of any particular kind,
    based on the evidence before it.[^114] According to the court, the
    only available study, upon which it relied heavily, showed that
    stations owned primarily by women are just one and a quarter times
    as likely to broadcast programming targeted at female audiences as
    are stations owned primarily by men.[^115] NAB also argues, citing
    *Lutheran Church*, that the Commission has failed to define "what it
    means by diverse programming," and that the *Lutheran Church* court
    questioned whether "intrastation" diversity is an important
    interest.[^116]

57. In contrast, a variety of commenters believes there is a nexus
    between employment opportunities and diverse programming[^117] and
    that the Commission has authority to impose equal employment
    opportunity obligations to foster diverse programming as part of our
    public interest mandate.[^118] AFTRA concludes based on its
    experience administering hundreds of collective bargaining
    agreements with television and radio stations across the country
    that a nexus between employment of minorities and females at all
    levels and program diversity does exist. AFTRA notes that, while it
    cannot be said that program diversity at those stations results
    solely from the employment of minorities and females, it is its
    experience that these employees have considerable influence over
    programming. It adds that it represents a varied array of broadcast
    employees, including production assistants, writers, reporters and
    anchors, all of whom exert considerable influence over the
    production of programming.[^119]

58. A number of commenters provide anecdotal or other evidence to show
    that there is a nexus between employment of minorities and women and
    program diversity. For example, Cathy A. Hughes states that "When we
    start seeing women in management positions, then we start getting
    coverage on breast cancer, premature child birth, and issues that
    are of interest to the overwhelming majority of women;" Paula
    Madison states that "Diversity plays an important role in how
    program decisions are made at NewsChannel4....At every point in
    \[the process of developing news stories\], there is a diverse group
    of people making the decisions, and the role of race in any of our
    stories is discussed regularly and openly throughout our staff;" and
    Dennis Swanson states "I believe that having a diversified staff at
    the department head level has helped WNBC be more conscientious
    towards a wider range of programming and news views. Our news
    director is an African-American woman, and our station relations
    director is a Latina woman. Both exert strong influences on our
    station's on-air content. In addition, minority news reporters, such
    as Ti Hua Chang, raise our level of sensitivity to minority
    communities."[^120] The evidence suggests that employment of women
    and minorities at lower levels also promotes diversity because
    lower-level employees are sometimes promoted to higher levels.[^121]
    Some commenters furnish affidavits illustrating that entry level
    positions may be stepping stones to higher-level positions that have
    a clear impact on programming.[^122] While NAB dismisses this
    evidence as anecdotal or irrelevant,[^123] it does not explain why
    it is not relevant. We believe that we can rely in part on anecdotal
    evidence to establish a nexus between employment opportunity and
    diverse programming.[^124] We believe that such reliance is
    particularly justified where the nexus is not easily susceptible to
    statistical proof because it is impossible to establish from
    empirical evidence the connection between programming decisions and
    the backgrounds of the decisionmakers.

59. The comments also indicate that there is an indirect nexus between
    employment opportunities and diverse programming because employment
    opportunities are linked to ownership opportunities and increased
    minority and female ownership leads to increased diversity of
    programming.[^125] We have already discussed the record evidence of
    the nexus between employment opportunity and ownership. The comments
    also indicate that there is a nexus between diversification of
    ownership and diversity of programming. A number of commenters cite
    an econometric study by Jeff Dubin and Matthew L. Spitzer that
    concludes that "increasing the number of minority-owned broadcasting
    stations increases the amount of minority-oriented
    programming."[^126] This study, based on data compiled from a 1987
    survey of radio stations conducted by the FCC, concludes:

To sum up the test of our hypotheses, then, we have seen that minority
ownership has a distinct and significant impact on minority programming,
even after we control for the composition of minorities in the
marketplace. Programming does also respond to composition of minorities
in the marketplace. The magnitude of the coefficients for Black
ownership on Black programming and Hispanic ownership on Spanish
programming are significantly larger than the coefficient for female
ownership on female programming. We also see, however, that a greater
degree of female ownership leads to increases in programming targeted to
several other minority groups. Stations with female ownership are more
likely to program primarily for females, but are also more likely to
increase programming for Blacks, Hispanics, Asians, and American
Indians. The combined effects are similar in magnitude to those for the
minority group owners taken separately. To increase Black programming,
it may be most effective to increase the number of Black owners. To
increase minority programming, it would be at least as effective to
increase the number of female owners. We did not find that increasing
the number of radio stations in a market increased the amount of
minority programming, but we did find that radio stations may be using
the presence of other stations in the market that program for minorities
as a signal to guide the stations in their programming choices. As the
percentage of other stations programming for a given minority group
increases, the likelihood that the respondent's station will program for
that minority group increases as well.[^127]

Thus, this study suggests that increasing minority ownership leads to
increases in programming directed primarily to members of minority
groups. Therefore, contrary to views expressed by some commenters,
market demographics do not appear to be the sole determinant of
programming.

60. Further empirical evidence for the proposition that "minority
    ownership increases the net amount of minority-targeted programming"
    is found in a recent, as yet unpublished, study by Peter Siegelman
    and Joel Waldfogel.[^128] Siegelman and Waldfogel "show that Black
    and White (and Hispanic/Anglo) preferences in radio programming are
    substantially different."[^129] Their research and analysis also
    suggests that "minority ownership increases the net amount of
    minority-targeted programming. Even though most minority-targeted
    stations are White-owned, markets with more minority-owned stations
    also have more minority-*targeted* stations, which means that
    minority-owned stations add to the total programming available to
    minority listeners."[^130]

61. FCC staff analysis using the BIA MasterAccess data also indicates
    that minority-owned stations program differently, on the whole, from
    non-minority-owned stations. Over 78% of all minority-owned stations
    have Urban, Spanish, and Religion formats, compared with only 21% of
    stations in other small-station groups and 15% of stations in large
    station-groups.

62. Based on the foregoing, we believe that equal employment
    opportunities for minorities and women further the public interest
    goal of diversity of programming, both directly and also indirectly
    by promoting minority and female ownership. Accordingly, we believe
    that the governmental interest in fostering diversity of programming
    provides additional authority for reinstituting EEO rules.

3\. [Annual Employment Reports]{.underline}

63. We tentatively concluded in the *NPRM* that we have authority to
    require broadcasters and cable entities to file annual employment
    reports to enable us to monitor industry employment trends.[^131] We
    observed that the court in *Lutheran Church* did not conclude that
    the Commission lacks authority to collect statistical employment
    data to analyze industry employment trends or to prepare our annual
    broadcast and cable employment trend reports. Further, we noted that
    the Commission has broad authority under the Communications Act to
    collect information and prepare reports.[^132] We also noted that
    the Commission is *required* by statute to collect employment data
    for the broadcast television and cable industries.[^133]

64. Although some commenters raised constitutional concerns, as
    discussed above, regarding the potential use of this data by the
    Commission and others, none of the commenters challenged our
    tentative conclusion that we have authority to collect the
    data.[^134] We conclude that we have authority under the statutory
    provisions cited above to require broadcasters and cable entities to
    file annual employment reports to enable us to monitor industry
    employment trends. We continue to believe that knowledge of these
    industry trends will assist us in evaluating the effectiveness of,
    and continued need for, our EEO rules, and in making appropriate
    recommendations to Congress for legislative change. We note that the
    legislative history of the 1992 Cable Act indicates that Congress
    relied on the Commission's employment trend reports in concluding
    that women and minorities continue to be underrepresented in policy
    and decision making positions in the cable industry and that
    modifications of the cable EEO rules were necessary.[^135] Moreover,
    as discussed above, we do not believe that the filing of annual
    employment reports will impermissibly pressure broadcasters or cable
    entities to adopt racial or gender preferences in hiring because the
    data in the annual employment reports will not be used for screening
    renewal applications or considered in assessing compliance with our
    EEO requirements.

**B. Broadcast and Cable EEO Rules, Policies, and Forms**

1\. [Anti-Discrimination Provisions]{.underline}

65. In the *NPRM*, we proposed to retain our prohibition against
    employment discrimination.[^136] In addition, we proposed to
    continue our longstanding policy of deferring action on individual
    complaints of employment discrimination against broadcasters and
    cable entities pending final action by the EEOC or other government
    agencies and/or courts established to enforce nondiscrimination
    laws. We stated, however, that we would retain the discretion to
    consider allegations of discrimination prior to a final
    determination by the EEOC or a court where the facts so warrant. We
    also requested comment on whether to require that the Commission be
    contemporaneously notified of discrimination complaints filed with
    the EEOC or a court.

66. Several commenters directly support our retention of the prohibition
    against employment discrimination.[^137] Other commenters, without
    addressing the issue directly, demonstrate their support for a
    nondiscrimination requirement implicitly through their comments and
    proposals.[^138] We conclude that we should retain our prohibition
    against employment discrimination. As discussed above, the
    Commission has statutory authority to prohibit discrimination by
    broadcasters and cable entities and, in the case of broadcast
    television licensees and permittees and cable entities, is
    *required* to do so.[^139] Moreover, we believe that a finding that
    a broadcaster has engaged in employment discrimination would raise a
    serious question as to its character qualifications to be a
    Commission licensee and to fulfill its statutory obligation to
    provide broadcast service \"to all people of the United States,
    without discrimination on the basis of race, color, religion,
    national origin, or sex\...\"[^140] We would have no confidence that
    an entity that has discriminated against job applicants or employees
    based on race, ethnicity, or gender would serve the needs and
    interests of its entire community of license in a nondiscriminatory
    fashion.

67. We also agree with those commenters who state that we should
    generally defer action on individual discrimination complaints
    against broadcasters and cable entities pending final action by the
    EEOC or a court of competent jurisdiction, consistent with the
    policy articulated in *Memorandum of Understanding Between the
    Federal Communications Commission and the Equal Employment
    Opportunity Commission*, 51 Fed. Reg. 21798 (1986)
    (\"*MOU*\").[^141] As we noted in the *NPRM*, the policy set forth
    in the MOU was developed primarily because Congress intended the
    EEOC to be principally responsible for the resolution of employment
    discrimination disputes and efforts on our part to separately
    resolve such disputes would result in unnecessary duplication.
    Furthermore, as several commenters observe, the EEOC has substantial
    expertise in adjudicating employment discrimination
    complaints.[^142] Thus, we will continue to forward individual
    discrimination complaints received at the Commission to the EEOC for
    processing. In addition, we will continue to take cognizance of any
    final determinations of employment discrimination in licensing
    decisions.

68. We are unpersuaded by MMTC\'s argument that the Commission should
    repeal its policy of generally declining to review individual
    allegations of discrimination against broadcasters pending a finding
    of discrimination by the EEOC or a court.[^143] MMTC asserts that
    this policy effectively immunizes discriminators from Commission
    review because discrimination cases against broadcasters rarely
    result in a final order.[^144] MMTC claims that, even in cases where
    the EEOC or court has found that a broadcaster has discriminated,
    the broadcaster can avoid Commission review of the discrimination
    charge by offering the complainant a nominal sum in excess of the
    amount of the verdict in exchange for the complainant\'s consent to
    a motion to vacate the judgment.[^145] Notwithstanding MMTC's
    claims, we are concerned that repeal of our general policy of
    deferring individual discrimination complaints could result in
    duplication of efforts and inconsistent decisions. Furthermore, we
    believe that where there is a conclusion that a broadcaster has
    engaged in employment discrimination, the Commission may take
    cognizance of findings of fact, notwithstanding any post-judgment
    settlement, particularly one intended to circumvent Commission
    consideration of allegations of discrimination.

69. Nevertheless, we retain the discretion to consider allegations of
    discrimination prior to a final determination by the EEOC or a court
    where the facts so warrant. However, we do not intend to routinely
    exercise our discretion to consider allegations of discrimination
    before an EEOC or court decision. We disagree with commenters who
    suggest that the FCC\'s EEO rules and policies substantially
    duplicate the work of the EEOC.[^146] While the EEOC and the FCC
    share as a common goal the elimination of discriminatory employment
    policies and practices at broadcast stations and cable
    systems,[^147] the primary functions of the two agencies are
    different. Whereas the EEOC reviews discrimination complaints for
    the purpose of providing relief to victims of discrimination, either
    individually or as a group, and deterring future discrimination, the
    FCC\'s principal concern in reviewing discrimination allegations is
    the fitness of broadcasters and cable entities to fulfill their
    obligations under the Communications Act.

70. We will not require that broadcasters and cable entities
    contemporaneously notify the Commission of discrimination complaints
    filed with the EEOC. One commenter urges that broadcasters be
    required to report any discrimination complaints at least on an
    annual basis because broadcast license renewals now arise only every
    eight years.[^148] However, in view of our decision to continue our
    policy of generally deferring action on individual discrimination
    complaints pending final action by the EEOC or a court, we see no
    reason to require that broadcasters contemporaneously notify the
    Commission of the filing of discrimination complaints. We note,
    moreover, that broadcasters are required under Section 1.65(c) of
    the Commission\'s Rules to report any adverse findings or adverse
    final actions involving discrimination complaints on an annual
    basis.[^149] Thus, the Commission will not have to wait until a
    broadcaster files for renewal of its license to learn of an adverse
    finding or adverse final action on a discrimination complaint.

71. We requested comment in the *NPRM* on a proposal set forth by MMTC
    and 21 other organizations (\"Joint Commenters\") in *Streamlining*
    that the Commission consider all evidence which might be probative
    of discrimination or other EEO violations.[^150] The Joint
    Commenters suggested that this type of evidence could include, among
    other things: evidence of a broadcaster\'s misconduct at commonly
    owned stations and headquarters units; evidence from individual
    allegations of discrimination in exceptional cases; evidence from
    nonresponsive answers or omissions on Form 396, in pleadings or in
    responses to Commission inquiries; evidence of failure to maintain
    records of EEO efforts; and evidence derived from logical inferences
    of potential discrimination drawn from a broadcaster\'s irrational
    explanations to the Commission for EEO nonperformance, such as
    claims that minorities prefer not to work in a particular format or
    that minorities and women prefer occupations outside of
    broadcasting. We invited comment on whether we should consider any
    of these types of evidence to be probative of discrimination. In its
    comments, MMTC sets forth a comprehensive proposal for a "zero
    tolerance policy" for discrimination and urges that the Commission
    consider these types of evidence to be probative of discrimination
    as one aspect of this zero tolerance policy.[^151] Two other
    commenters agree that these types of evidence should be considered
    to be probative of discrimination.[^152]

72. We agree with MMTC that discrimination by broadcasters and cable
    entities is manifestly contrary to the public interest and cannot be
    tolerated. We have thus incorporated several aspects of MMTC's
    proposed zero tolerance policy into the rules and policies we are
    adopting in this proceeding. Regarding MMTC's proposal as to the
    types of evidence that should be considered to be probative of
    discrimination, we think it appropriate, given the unique
    circumstances in each instance, to determine on a case-by-case basis
    whether these or other similar types of evidence are indicative of
    discrimination or other EEO violations and whether they warrant
    action by the Commission prior to a final determination by the EEOC
    or a court. For example, under certain circumstances, if there are
    well-supported allegations of discrimination made by a large number
    of individuals against one broadcast station or cable unit, or
    allegations of discrimination that shock the conscience or are
    particularly egregious, we may consider these allegations prior to a
    final determination by the EEOC or a court. In addition, if a
    broadcaster or cable entity engages in a pattern of deliberate and
    systematic violations of the EEO program requirements and such
    practices have the effect of denying women and minorities access to
    job opportunities, we may consider this to be evidence of
    discrimination.

73. MMTC also proposes as part of its zero tolerance policy for
    discrimination that the Commission expressly prohibit broadcasters
    from using compulsory binding arbitration agreements[^153] and
    establish clear and fair conditions governing broadcasters' use of
    voluntary binding arbitration agreements.[^154] Additionally, MMTC
    proposes that the Commission take steps to bar the practice of
    selling a broadcast station using procedures that exclude minority
    buyers.[^155] MMTC further suggests that, if a broadcaster uses an
    expressly racist or sexist appeal in seeking the business of
    advertisers, the Commission should investigate to determine whether
    the broadcaster has created a hostile working environment for
    minorities or women.^.^[^156] While these racist practices are
    repugnant and may be, in certain circumstances, inconsistent with
    our *Character Policy Statement*,[^157] we will not separately
    address these matters in this rule making because they are beyond
    the scope of this proceeding, which was initiated to revise the EEO
    rules in light of the court's decision in *Lutheran Church*.

74. One commenter complains that the Commission\'s broadcast EEO Rule
    should be expanded to prohibit discrimination based on
    disability.[^158] Both Congress and this Commission have sought to
    ensure that persons with disabilities share in the benefits that
    modern communications services and products have to offer.[^159] We
    note that employment discrimination based on disability is
    prohibited by the Americans with Disabilities Act of 1990.[^160]
    Further, the rule changes we adopt today should assist all potential
    applicants, including those who are disabled, in obtaining
    information concerning openings at broadcast stations and cable
    entities. We believe, however, that the specific proposal raised in
    this context is beyond the scope of this proceeding.

75. Finally, we find substantial merit in several other aspects of
    MMTC's proposed zero tolerance policy. We address these aspects of
    MMTC's proposed zero tolerance policy below in our discussion of the
    EEO program requirements and enforcement scheme.

    2\. [Broadcast EEO Program Requirements]{.underline}

```{=html}
<!-- -->
```
a.  a\. [Rules and Policies]{.underline}

    i\. [EEO Program and Related Provisions]{.underline}

```{=html}
<!-- -->
```
76. [Recruitment]{.underline}. In the *NPRM*, we stated our belief that
    effective recruitment is important because women and minorities have
    historically experienced difficulties in finding out about, or
    taking advantage of, employment opportunities in the communications
    industry. We nonetheless recognized that the issue as to the
    specific recruitment techniques to be utilized was a matter that
    would benefit from public input. Accordingly, we requested comment
    on whether we should adopt a rule imposing detailed requirements or
    whether we should afford flexibility in recruitment
    techniques.[^161]

77. Based on our review of the Comments as discussed below, we are
    convinced that a meaningful program of recruitment involving broad
    outreach is essential to ensure equal employment. We also conclude
    that it is desirable to accord broadcasters flexibility in designing
    outreach programs that are tailored to the needs of their station
    and community. Moreover, we believe that the objective of ensuring
    that minority and female applicants have the opportunity to apply
    for positions in the broadcast industry may be achieved without a
    specific requirement that broadcasters in every situation use
    recruitment methods that specifically target those groups. Outreach
    that is truly broad and inclusive will necessarily reach minorities
    and females, as well as other segments of the community that in the
    past may have been deprived of the opportunity to compete for
    broadcast employment. Therefore, we will give broadcasters
    discretion to determine what combination of recruitment sources will
    yield broad and inclusive outreach. While targeted sources can
    enhance the effectiveness of recruitment efforts, stations will be
    allowed to determine whether, when and how to use them to meet their
    individual circumstances. However, we will reassess these
    conclusions and the effectiveness of this approach as we gain
    experience in applying our new EEO rule.

78. In order to achieve our goal of ensuring broad outreach while
    affording broadcasters flexibility in designing their EEO programs,
    we will require broadcasters[^162] to comply with our new EEO
    program requirements, summarized as follows:

    [Basic Obligation]{.underline}: widely disseminate information
    concerning each full-time job vacancy (*see* para. 85); and comply
    with one of the following two outreach options:

    OPTION A

    [Supplemental Recruitment Measures]{.underline}:

```{=html}
<!-- -->
```
(i) notice of openings to qualifying organizations that request such
    notice (*see* paras. 95, 96, 97); and

(ii) two (for employment units with five to ten full-time employees) or
     four (for larger employment units)[^163] longer-term recruitment
     initiatives within a two-year period including, *e.g.*:
     participation in at least 4 job fairs by station personnel who have
     substantial responsibility in making hiring decisions; hosting at
     least one job fair; co-sponsoring job fairs with women's and
     minority groups in the business and professional community;
     participation in scholarship programs directed to students desiring
     to pursue a career in broadcasting; sponsorship of at least two
     events in the community designed to inform the public as to
     employment opportunities in broadcasting (*see* paras. 99, 100,
     101, 102, 103)

     [Recordkeeping]{.underline}

```{=html}
<!-- -->
```
(i) collection, but not routine submission to the Commission of: (i)
    listings of all full-time jobs filled, identified by job title; (ii)
    the recruitment sources used to fill each vacancy, including any
    organizations which requested notification; (iii) the address,
    contact person and telephone number of each recruitment source used
    to fill each position; (iv) dated copies of all advertisements,
    letters, e-mails, faxes, etc. used to fill each vacancy; (v)
    documentation necessary to demonstrate performance of supplemental
    outreach initiatives, *e.g*., job fairs, mentoring programs; (vi)
    the total number of interviewees for each vacancy and the referral
    source for each interviewee; (vii) the date each job was filled and
    the recruitment source that referred the hiree (*see* paras. 115,
    116, 117, 118)

(ii) placement in the station public file annually a report including
     the following: (i) all full-time jobs filled during the previous
     year; (ii) recruitment sources used to fill those vacancies; (iii)
     address, contact person and telephone number of each recruitment
     source; (iv) recruitment source for each hiree; (v) recruitment
     source for each interviewee; and (vi) description of any
     supplemental initiatives implemented during the previous year
     (*see* para. *123*)

     or

     OPTION B

     [Alternative Recruitment Program]{.underline}:

```{=html}
<!-- -->
```
(i) design its own broad and inclusive outreach program; and

(ii) demonstrate that it is widely disseminating information concerning
     job vacancies by analyzing the recruitment sources, race, ethnicity
     and gender of the applicants attracted by its recruitment efforts
     (*see* para. 104)

     [Recordkeeping]{.underline}

```{=html}
<!-- -->
```
(i) collect, but not routinely submit to the Commission: (i) listings of
    all full-time jobs filled, identified by job title; (ii) the
    recruitment sources used to fill each vacancy; (iii) the address,
    contact person and telephone number of each recruitment source used
    to fill each position; (iv) dated copies of all advertisements,
    letters, e-mails, faxes, etc. used to fill each vacancy; (v) data
    reflecting the recruitment source, gender, and racial/ethnic origin
    of applicants for each full-time job filled (*see* paras. 116, 119)

(ii) place in the station's public file annually a report containing the
     following: (i) all full-time jobs filled during the previous
     year; (ii) recruitment sources used to fill those vacancies; (iii)
     address, contact person and telephone number of each recruitment
     source; and (iv) recruitment source, race, gender and national
     origin for each applicant (*see* para. 123)

```{=html}
<!-- -->
```
79. There is substantial support among the commenters that broad
    recruitment outreach is preferable to word-of-mouth recruitment,
    even though there is disagreement about the specific proposals set
    forth in the *NPRM*. MMTC contends that outreach in recruitment is
    the core of any meaningful EEO program.[^164] Although NAB contends
    that the proposed rules are unduly burdensome, it advances an
    alternate proposal designed to provide employment information to a
    broad range of applicants.[^165] Similarly, 46 Named StBAs expresses
    reservations concerning many aspects of the EEO program proposed in
    the *NPRM*, but supports the goal of broad outreach and the
    desirability of avoiding exclusive reliance on word-of-mouth
    recruitment. It proposes an alternative based on a model outreach
    program developed by the Broadcast Executive Directors Association
    (\"BEDA\").[^166] Even commenters who oppose the adoption of any
    rule nonetheless urge that the Commission remain available to assist
    broadcasters in their efforts to broaden their recruitment
    outreach.[^167] In sum, the record before us confirms our view that
    broad outreach efforts to ensure that all segments of the
    population, including minorities and women, are aware of broadcast
    employment opportunities are of crucial importance to the goals
    established by Congress of deterring unlawful discrimination and
    fostering diversity of programming.

80. In response to our request for comments as to how to implement a
    meaningful outreach program, many commenters support a flexible
    approach rather than one mandating the use of a specified number of
    recruitment sources of specified types. Several commenters submit
    comprehensive program proposals that they believe will ensure
    meaningful outreach while leaving maximum flexibility to
    broadcasters in designing their individual programs. The following
    is a review of several of these proposals.

81. NAB proposes three options for complying with Commission EEO
    requirements. First, NAB suggests that compliance with Office of
    Federal Contract Compliance Programs (\"OFCCP\") requirements should
    suffice as compliance with the Commission\'s Rule (although NAB
    states that there may be constitutional problems with the OFCCP
    requirements). As a second alternative, NAB proposes that
    broadcasters could achieve compliance by participating in a
    Broadcast Career Program operated by their State Broadcast
    Association (\"StBA\"). This refers to the model plan developed by
    BEDA, which is discussed below in connection with the proposal of 46
    Named StBAs. In both cases, NAB proposes that we require only that
    broadcasters certify every two years that they have complied with
    the OFCCP or BEDA programs. The third alternative proposed by NAB is
    a flexible outreach program developed by the licensee. The proposal
    would allow broadcasters to choose from a \"menu\" of six general
    (*i.e.*, not related to a specific job vacancy) and nine specific
    outreach efforts. The general outreach efforts would include
    sponsorship of, or participation in, job fairs, scholarship,
    mentoring and intern programs, and training programs for existing
    employees. The specific outreach efforts would include standard
    recruitment methods (such as placing newspaper or magazine
    advertisements, making on-air job announcements, etc.) and such
    methods as posting job notices on internet web pages. Under NAB\'s
    proposal, a licensee would achieve compliance by utilizing two
    general outreach initiatives, or one general and two specific
    outreach initiatives, or four specific outreach initiatives.[^168]

82. The proposal of 46 Named StBAs is premised on a model program
    developed by BEDA. The program itself consists of suggestions or
    \"highways\" that StBAs might use in maximizing EEO outreach,
    including outreach activities by the StBA itself and activities of
    the StBA to assist individual broadcasters in maximizing their
    outreach. Thus, the program suggests that a StBA could develop
    relationships with educational institutions in its state in order to
    encourage and assist students who may wish to pursue careers in
    broadcasting; sponsor internships, mentoring programs, fellowships,
    apprenticeships, and training programs, and assist broadcasters who
    wish to implement similar initiatives; provide information and
    assistance concerning recruitment resources and methods; take steps
    to encourage broadcaster participation in the StBA program and
    increase public awareness of the program; and conduct surveys to
    evaluate the effectiveness of the program. The key element of the
    program, according to 46 Named StBAs, is the maintenance by BEDA and
    StBAs of web sites for the posting of job vacancy information.
    Commenters have pointed out that many StBAs, as well as NAB,
    maintain similar employment web pages. Internet usage has increased
    and internet access is available from 73.3% of public libraries, 46
    Named StBAs asserts. Accordingly, it urges that broadcasters should
    be deemed to be in compliance with our rules if they post at least
    67% of their vacancies on the BEDA web site or a web site maintained
    by a StBA. Recruitment should not be required for all vacancies, 46
    Named StBAs contends, because there are some instances where there
    is good reason not to post a particular vacancy.[^169]

83. AWRT suggests a recruitment program based on a \"menu\" approach.
    AWRT suggests a menu of 12 recruitment methods, including listing
    individual vacancies in various recruitment sources, and such
    additional techniques as job fairs, training and networking
    programs, and participation in media trade groups oriented to
    minorities and females.[^170] AWRT proposes that broadcasters with
    more than 10 employees be required to utilize eight of the 12
    methods, while broadcasters with fewer than 10 employees only be
    required to utilize five of the recruitment methods.[^171]

84. MMTC contends that recruitment should include the use of sources
    targeted to minority and female job applicants. Accordingly, it does
    not oppose the option noted in the *NPRM* of requiring that
    recruitment include at least three such targeted sources.
    Nonetheless, it suggests that a better approach would be to require
    that broadcasters fax or e-mail notifications to virtually all local
    and several non-local sources of job applicants. MMTC argues that
    this would eliminate concern as to whether sufficient minority or
    female organizations had been contacted. It nonetheless recognizes
    that a problem could arise if claims were made that a broadcaster
    had failed to contact particular local organizations. It accordingly
    proposes that the Rule should specify a minimum number of
    organizations a broadcaster would be required to contact, ranging
    from 10 to 50, based on the size of the market.[^172] MMTC also
    urges that non-traditional means of recruitment should be required
    as a supplement to recruitment conducted when a vacancy occurs.
    Thus, MMTC states that, contrary to its expectations, its research
    has led it to conclude that job fairs can be an effective means of
    recruitment, at least for entry-level positions. It also cites
    recruitment through job banks, the internet, and participation in
    trade events sponsored by minority and female groups as having
    \"promise.\" It nonetheless argues that such activities must be
    conducted in a meaningful way, and that no credit should be given
    for activities that are insubstantial or constitute a sham.[^173]

85. As noted, we believe that recruitment for all full-time hires is
    essential to meaningful outreach. Thus, recruitment for only some
    openings could leave the most desirable positions open to a limited
    number of potential applicants, possibly excluding significant
    segments of the community, such as females and minorities.
    Therefore, we will require that broadcasters widely disseminate
    information concerning all full-time openings except in rare
    circumstances, as described below. To fulfill this obligation, we
    will require that broadcasters develop and utilize for each vacancy
    a list of recruitment sources (which may be freely modified as
    circumstances warrant) sufficient to ensure wide dissemination of
    information about the opening. We will not dictate the number or
    type of sources that a broadcaster must include in its own
    recruitment list. However, if the sources used cannot reasonably be
    expected, collectively, to reach the entire community, then the
    broadcaster may be found in noncompliance with our EEO Rule. A
    broadcaster may widely disseminate job postings through any
    combination of methods sufficient to ensure that its recruitment
    efforts are inclusive.

86. We have carefully considered BEDA's proposal that an entity should
    be able to satisfy its outreach obligation fully by posting job
    vacancies on the BEDA or state association website. Internet-based
    job banks such as the BEDA model hold great promise for dramatically
    increasing the ability of prospective applicants to gain access to
    information about job vacancies, not just in their community but
    across the state and even the country. We commend BEDA for
    developing this new mechanism and encourage broadcasters to use
    these or similar websites to help them in their recruitment efforts.
    It is premature, however, to conclude that web posting is sufficient
    to ensure wide dissemination to all segments of the community.
    First, the BEDA job bank web site and those of state broadcast
    associations are still developing. As far as we can determine, most
    state broadcast associations do not yet in fact have internet job
    banks, and those that do post only a limited number of vacancies
    from local broadcast stations. Second, in view of their newness
    these websites are not well known as a repository of job
    advertisements for prospective applicants. Most significantly,
    however, access to computers is not universal and this digital
    divide affects minorities and those living in rural areas to a
    greater extent than other segments of the population.[^174] We have
    established the E-Rate program to provide greater access to the
    internet in our schools and libraries. But we are not convinced that
    access via the public library is a widespread mechanism for
    prospective applicants to conduct a job search. Accordingly, we
    cannot now recognize such internet job banks as presumptively
    sufficient to achieve broad outreach. We think it preferable to
    consider the internet as one of several recruiting mechanisms.

87. We will continue to monitor the development of the state association
    internet job banks, however., and we encourage broadcasters to keep
    us informed as to the progress of these activities and the success
    of the internet as a recruiting tool. After some experience with the
    new rule and internet- based initiatives such as the BEDA model we
    would be prepared to review, upon appropriate petition, our position
    on this matter. We would expect such a petition to demonstrate that
    the internet job bank (1) is well established and provides
    comprehensive statewide job listings; (2) is sufficiently publicized
    throughout the community; (3) is available to stations that are not
    members of the association sponsoring the internet job bank to list
    their job vacancies; and (4) that computer access has become
    sufficiently universal so that it could be reliably assumed that an
    internet job posting will be readily available to all segments of
    the community. Finally, we would review the extent to which
    applicants are applying for jobs as a result of web postings,
    whether and why any segment of the community is having particular
    difficulty in gaining access to such postings, and methods by which
    the petitioner would reach that segment of the population.

88. As we proposed in *Streamlining*, broadcasters may engage in joint
    recruitment efforts, but each broadcaster will remain individually
    responsible for achieving broad outreach. We have concluded, based
    on the comments and our experience enforcing EEO rules over the last
    30 years, that there is considerable value in allowing individual
    broadcasters flexibility to design outreach programs that will work
    in their communities, and that there is no effective \"one size fits
    all\" recruitment model. Moreover, such flexibility will afford
    relief to broadcasters in smaller markets, which may not need to use
    as many recruitment sources to achieve broad outreach in their
    markets.

89. We recognize that there may be occasional exigent circumstances
    where recruitment may not be feasible. For instance, there may be a
    legitimate need to replace immediately an employee who departs
    without notice and whose duties cannot be fulfilled, even briefly,
    by other station employees. We nonetheless do not believe that
    broadcasters should be excused from recruitment for any specified
    percent of vacancies, as some commenters advocate. Rather, hiring
    without recruitment should occur only in exceptional circumstances.
    We cannot anticipate every circumstance which might justify filling
    a position without recruitment. We will rely upon the good faith
    discretion of broadcasters. However, we expect nonrecruited
    vacancies to be rare relative to the number of vacancies for which
    recruitment is conducted, because our Rule generally requires
    recruitment for every vacancy.

90. We expect broadcasters to allow a reasonable time after recruitment
    is initiated for applications to be filed before the position is
    filled. We recognize that occasionally a shorter time might be
    necessary because of extraordinary circumstances. However, we
    caution that excessive instances of hires being made shortly after
    the initiation of recruitment could result in a finding of
    noncompliance if the evidence suggests that the broadcaster is not
    in good faith allowing adequate time for applicants to respond to
    its outreach efforts or is not considering their applications.

91. We do not accept NAB\'s proposal that broadcasters should be deemed
    in compliance with our EEO Rule based only on their certification of
    participation in a StBA program set up pursuant to the BEDA program.
    The BEDA program itself consists of suggestions that individual
    StBAs are not required to follow. Thus, the actual components of
    particular StBA programs will vary. The existence of different
    requirements in different states would be confusing to the public
    and difficult to enforce. Also, the BEDA program is premised on the
    use of the internet as the primary recruitment source, which we find
    inadequate at this point. Nonetheless, the efforts of the StBAs are
    to be commended. Moreover, there remains an ample role for programs
    developed by the StBAs in assisting broadcasters in meeting the EEO
    requirements we are adopting herein, in coordinating joint
    recruitment efforts, and in promoting the further development of the
    internet as a recruitment tool.

92. We have also considered MMTC\'s suggestion that broadcasters be
    required to use all available recruitment sources. This is an
    approach that may recommend itself to many broadcasters, especially
    insofar as such technologies as e-mail and fax make the notification
    of a large number of sources less burdensome. However, as MMTC
    concedes, there are difficulties in adopting this approach as a
    requirement, primarily in terms of identifying the universe of
    available sources. Also, it could result in sending notifications to
    many sources that are neither interested nor productive. The
    solution of placing a maximum on the number of sources broadcasters
    would be required to use does not entirely cure the problems because
    there could still be disputes in situations where a broadcasters
    asserts that the number of available sources is less than the
    maximum.

93. We will apply the recruitment requirement to all full-time
    employees, including lower-level employees. As indicated in the
    *NPRM*,[^175] we believe that lower-level positions provide an
    important means of entry into the broadcast industry that can lead
    to higher-level positions and even ownership. Nothing in the record
    has convinced us otherwise. Indeed, we have received comments from a
    number of persons who currently hold high-level positions in
    broadcasting, whose personal experience confirms this to be the
    case.[^176] Also, as discussed above, the application of outreach
    requirements to all levels is necessary to deter discrimination and
    we believe that Congress intended the Commission to apply EEO
    requirements to all job categories.

94. In addition, as discussed above, we are adopting two options from
    which broadcasters may choose to ensure the success of their
    outreach. As indicated above, under the first option, broadcasters
    would be required to undertake two kinds of supplemental recruitment
    measures. We emphasize, however, that, while we believe that these
    measures will aid in achieving broad outreach, they are only
    intended to be supplemental to a broadcaster's own broad and
    inclusive recruitment program efforts to widely disseminate job
    vacancy information, which, as was requested by many commenters, we
    are permitting broadcasters to design pursuant to their employment
    units' individual circumstances. Regardless of the option chosen,
    broadcasters have an affirmative obligation to recruit for vacancies
    that cannot be delegated to any outside group.

95. We have previously stated the reasons why we will not implement
    MMTC's proposals that broadcasters be required to fax or e-mail
    notifications to virtually all local and several non-local sources
    of job applicants or, in the alternative, contact a minimum number
    of organizations to ensure that a sufficient number of minority and
    female sources are notified of job vacancies. However, we will
    require broadcasters to provide notification of job vacancies to any
    organization that requests such notification, provided the
    organization is a kind that regularly distributes information about
    employment opportunities to job seekers or refers job seekers to
    employers. We believe that this requirement addresses MMTC's concern
    because it is designed to ensure that any sector of the community
    that believes that it has been inadequately served by the station\'s
    outreach program has a means of obtaining notices of openings. This
    notification requirement will provide a \"safety valve\" in the
    event that a community organization with ties to a particular sector
    of the community believes that such sector is not being adequately
    reached by the broadcaster\'s chosen recruitment procedures. In this
    way, the organization could be instrumental in spreading the word
    about openings to its constituents. For example, a recruitment
    organization with ties to a particular racial or ethnic group or to
    college students or to persons with a particular disability, could
    request notices of openings for the purpose of notifying its
    constituents of vacancies as they arise. The obligation to notify
    such organizations provides added assurance that a broadcaster's
    recruitment notices will reach all segments of the community. For
    example, a college campus placement office might be able to inform
    college students about openings more effectively that the
    broadcaster is doing through its selected channels. Similarly, an
    organization with ties to a particular ethnic group might be well
    situated to disseminate information about vacancies in a group\'s
    first language. An organization that serves disabled persons, such
    as blind people, could keep them informed of openings of which they
    might be unaware if those openings were advertised only in
    publications that are inaccessible to vision-impaired persons. We
    also expect broadcasters to make reasonable efforts to publicize the
    notification requirements in their communities so that qualifying
    groups are able to learn of the new procedure. Such efforts could
    take the form of, for example, announcements on their stations or
    newspaper advertisements. Joint announcements by broadcasters would
    also be a reasonable way to meet this requirement.

96. We believe that organizations that come forward to request vacancy
    notifications may prove to be very productive referral sources.
    These organizations have a well-defined interest and may be able to
    help broadcasters achieve the kind of robust and inclusive outreach
    that will promote equal employment opportunity. Further, this
    approach will enable interested groups to more closely monitor and,
    if necessary, seek to improve, broadcasters' recruitment efforts.

97. We will provide broadcasters ample discretion to determine the
    method of providing notice to requesting parties. Such methods may
    include electronic mail and facsimile and we encourage the use of
    such methods as they may require fewer personnel and financial
    resources to fulfill the notification requirement than more
    traditional methods. For example, a broadcaster may maintain an
    electronic list of recruitment sources and notify all the sources
    simultaneously with a single e-mail when a vacancy occurs. We will
    also allow notifications to be made as part of joint recruitment
    efforts among broadcasters. However, each broadcaster participating
    in the joint recruitment efforts remains individually responsible
    for ensuring that notifications relating to its employment unit are
    made. For example, a state broadcast association may have a job bank
    that notifies certain sources on behalf of an employment unit when a
    vacancy becomes available at that employment unit. As long as the
    state broadcast association notifies all organizations requesting
    vacancy announcements from that employment unit as part of this
    process, the employment unit itself does not have to do so.
    Therefore, given the flexibility provided by electronic forms of
    notice and joint recruitment, we believe that the notification
    requirement will place minimal burdens on broadcasters. However, if
    experience proves otherwise, especially with respect to burdens on
    small broadcasters, we can revisit this requirement.

98. We want to emphasize that the obligation to notify recruitment
    sources that request notice of vacancies is intended as a supplement
    to, not a substitute for, broadcasters' core, nondelegable
    obligation to widely disseminate information concerning all job
    vacancies. While recruitment sources will have the right to ask
    broadcasters for notices of vacancies, they have no obligation to do
    so. And even if a broadcaster does not receive a single request for
    notice of vacancy information, it will nevertheless be responsible
    for ensuring that notice of vacancies is widely disseminated. If it
    fails to do so, we will not regard as a legitimate excuse the fact
    that no recruitment organization requested notice.

99. As the second supplemental recruitment measure, we will require that
    broadcasters engage in outreach efforts beyond the traditional
    recruitment that occurs in response to individual vacancies. These
    include such supplemental recruitment measures as job fairs, intern
    programs, training programs, mentoring programs, and interaction
    with educational and community groups. Standard recruitment for
    specific vacancies is useful to ensure outreach to persons who
    already have broadcast experience. However, it is also desirable to
    encourage outreach to persons who may not yet be aware of the
    opportunities available in broadcasting or have not yet acquired the
    experience to compete for current vacancies. Such persons are likely
    to include minorities, females, and others who have in the past been
    excluded by word-of-mouth recruitment methods. Moreover, we
    recognized in 1994, as part of our overall review of the EEO
    requirements then in place, that lack of training may be a factor
    impeding the diversification of a broadcaster's workforce and that
    such methods as intern and training programs may be useful in
    addressing that problem.[^177] Several commenters have endorsed
    supplemental recruitment measures as valuable tools for achieving
    outreach. For instance, MMTC indicates that its research showed that
    job fairs are an effective method of recruitment, at least for entry
    level positions. Accordingly, we conclude, based on our review of
    comments emphasizing the usefulness of such measures, that it is
    important to promote such nontraditional outreach methods, which
    have in the past been a secondary aspect of our EEO Rule.

100. We will accord broadcasters discretion as to how they implement
     this aspect of our Rule. We are impressed by the \"menu\" approach
     suggested by several commenters. We agree that the effectiveness of
     particular supplemental recruitment measures will necessarily vary
     based on the circumstances at each station. To establish inflexible
     requirements regarding such measures could impose inappropriate
     requirements in some cases. We will accordingly incorporate in our
     EEO Rule a menu of options for supplemental recruitment
     initiatives, which will enable broadcasters to select the
     approaches that they believe will be most effective in their
     situations.

101. The first three menu options include participation in at least four
     job fairs by station personnel who have substantial responsibility
     in the making of hiring decisions; hosting at least one job fair;
     or co-sponsoring at least one job fair with an organization in the
     business and professional community whose membership includes
     substantial participation of women and minorities. We believe that
     job fairs are a useful method to reach a broad range of individuals
     who are interested in employment in the industry. The fourth option
     is participation in at least four activities sponsored by community
     groups active in broadcast employment issues, including
     conventions, career days, workshops and similar activities. Such
     participation will enable broadcasters to establish relationships
     with groups in the community that might otherwise be overlooked.
     The fifth option is the establishment of an internship program
     designed to assist members of the community to acquire skills
     needed for broadcast employment. Such an endeavor would serve the
     goal of broad outreach by increasing the number of qualified
     potential employees not only for one broadcaster, but for all
     broadcasters in the area. The sixth option is participation in
     general (as opposed to vacancy-specific) outreach efforts by such
     means as job banks or internet programs such as those described in
     the model program developed by BEDA. While such sources may be used
     as recruitment sources when specific vacancies occur, they can also
     be useful even when there is no specific vacancy to elicit interest
     from persons who may later be considered for a specific position.
     The seventh option is participation in scholarship programs
     directed to students desiring to pursue a career in broadcasting.
     The benefit of this outreach is that it attracts students,
     including minorities and females, toward careers in broadcasting,
     ultimately increasing the number of qualified potential employees.
     The eighth and ninth options are, respectively, the establishment
     of training and mentoring programs designed to enable station
     personnel to acquire skills that could qualify them for higher
     level positions. These options would not be satisfied by ordinary
     training required for employees to perform their current positions.
     These options are rather intended to increase employee skills so
     they can qualify for higher positions.

102. The tenth option is participation in at least four events or
     programs relating to career opportunities in broadcasting sponsored
     by educational institutions. Such participation again serves the
     purpose of increasing the universe of potential employees from
     which broadcasters attract job applicants. For instance, the BEDA
     program contends that it is important that educational institutions
     perceive broadcasting as a rewarding career for their students and
     offer courses and experiences that will be helpful to students who
     may choose a career in broadcasting.[^178] The eleventh option
     includes sponsorship of at least two events in the community
     designed to inform the public as to employment opportunities in
     broadcasting. We believe that such activities can serve to increase
     public awareness of the opportunities available in broadcasting.
     The twelfth option is the only one related to regular recruitment
     efforts. It would entail listing each upper-level opening in a job
     bank or newsletter of a media trade group whose membership includes
     substantial participation of women and minorities. Finally, the
     thirteenth option includes participation in activities other than
     the twelve listed options that the licensee has designed to further
     the goal of disseminating information about employment
     opportunities in broadcasting to job candidates who might otherwise
     be unaware of such opportunities. This will provide flexibility for
     worthwhile initiatives that broadcasters may develop but that are
     not strictly within the scope of the menu options we have
     specified. While we are not requiring that broadcasters use
     particular recruitment sources, we encourage broadcasters to use an
     array of sources that furthers the goal of broad outreach.

103. For broadcasters who elect to utilize the supplemental recruitment
     measures, we will expect station employment units with more than
     ten full-time employees to implement four of these options every
     two years. For example, a broadcaster could fulfill this
     requirement by, during a two-year period, hosting one job fair,
     establishing an internship program, participating in a scholarship
     program, and co-sponsoring one job fair with an organization in the
     business and professional community whose membership includes
     substantial participation of minorities and women. For reasons
     discussed below, station employment units with five to 10 full-time
     employees should implement two of the options every two years. The
     pertinent two-year period will be that preceding the filing of
     Statements of Compliance (Form 397) or Broadcast EEO Program
     Reports (Form 396), discussed below.[^179] We will not specify in
     detail what steps should be taken to implement each option because
     we wish to accord broadcasters maximum flexibility and opportunity
     to experiment. While each broadcaster will be responsible for
     implementing the menu options it selects, joint recruitment efforts
     may be used in connection with some of the menu options, including
     participation in job banks and internet programs.

104. A number of broadcasters have urged the Commission to give them
     discretion to design an outreach program that is responsive to the
     needs of the broadcaster's organization and the local
     community.[^180] We are willing to allow broadcasters to forego the
     supplemental recruitment measures described above 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.
     Accordingly, if a broadcaster elects to design its own program
     rather than utilize the supplemental measures, we will require that
     it collect data tracking the recruitment sources, gender, and
     race/ethnicity of its applicant pools so that the broadcaster, the
     public and the Commission can evaluate whether the program is
     effective in reaching the entire community. If the data collected
     does not confirm that notifications are reaching the entire
     community, we expect a broadcaster to modify its program as
     warranted so that it is more inclusive. Thus, the rules we are
     adopting require a broadcaster to analyze the effectiveness of its
     outreach program, and address any problems found. The records
     required to be maintained by broadcasters choosing this approach
     are detailed in our general discussion of recordkeeping below.

105. While we are affording broadcasters the option of either employing
     supplemental recruitment measures to ensure broad outreach or
     verifying broad outreach using applicant pool data, we believe
     that, having selected an option, a broadcaster should use the
     selected option for a sufficient period of time so that it, the
     public, and the Commission can meaningfully assess the success of
     the broadcaster's efforts. As will be discussed below, as part of
     our enforcement process, we are requiring broadcasters to file
     Statements of Compliance every two years. We will permit a
     broadcaster to select a different option at the time it files its
     Statement of Compliance. Thereafter, the broadcaster should adhere
     to the option selected for at least the two-year period until the
     filing of its next Statement of Compliance.

106. Initially, we will require that broadcasters file with the
     Commission and place in their public file a statement as to their
     election between the two approaches (supplemental recruitment
     measures or alternative recruitment program) designed to ensure
     broad recruitment outreach within forty-five days of the effective
     date of the new rules. This will ensure that both the Commission
     and the public are aware of the approach the broadcaster intends to
     implement. In order to facilitate the initial election, we are
     preparing a form to be utilized for the initial election. Any
     broadcaster that does not receive a copy of the form by mail may
     obtain one from the Commission. A broadcaster may change its
     initial election when its first Statement of Compliance is due,
     even if that is less than the ordinary two-year period. Thereafter,
     as noted, a broadcaster will be expected to adhere to its election
     until the filing of its next Statement of Compliance. However, if
     there is a sale of the station subject to Commission approval
     pursuant to FCC Form 314 or FCC Form 315, the buyer may select a
     different option than that employed by the seller, even though it
     is within the two-year period. Copies of the initial election
     statements will be on file in the Commission's Public Reference
     Room. In the future, we intend to make information regarding a
     broadcaster's election electronically available on our web site.

107. Under our former EEO Rule, we did not require station employment
     units with fewer than five full-time employees to demonstrate
     compliance with the EEO program requirements. We will continue that
     policy under the EEO Rule being adopted herein. We emphasize,
     however, that all broadcasters, including those that are part of
     employment units with fewer than five full-time employees, are
     subject to the provision of the EEO Rule that prohibits
     discrimination. In accordance with our prior practice, we will
     consider employees to be full-time if their regular work schedule
     is 30 hours per week or more.

108. The term \"station employment unit\" refers to a station or group
     of commonly owned stations in the same market that share at least
     one employee. We believe that linking certain EEO program
     requirements to employment units will enable us, as well as
     broadcasters, to treat station combinations that share employees as
     one entity. Thus, broadcasters are required to undertake four menu
     options every two years per station employment unit, not per
     station. At the same time, large broadcasters cannot claim small
     station treatment by maintaining that each station in a station
     combination employs a small staff.

109. As proposed in the *NPRM*,[^181] we will not require recruitment
     for internal promotions, nor will we require recruitment for
     temporary employees. Typically, we view temporary employees as
     including those hired as emergency replacements for absent regular
     employees or those hired to perform a particular job for a limited
     period of time. However, if a person is hired full-time to perform
     a regular station function for an extended period of time (*e.g.*,
     more than six months), such a hire will be treated as a permanent
     hire for which recruitment would be required. We recognize that
     some broadcasters may wish to hire employees initially on a
     temporary basis with the possibility of retaining them on a
     permanent basis if their performance is satisfactory. In such
     circumstances, if recruitment is done at the time of the temporary
     hire, any later decision to convert the employee\'s status to
     full-time may be treated as a promotion. However, if an employee is
     hired as a temporary employee without recruitment, recruitment
     should occur if the employee is later considered for a permanent
     position. We caution that excessive instances of temporary hires
     being converted to permanent hires without a meaningful opportunity
     for recruited applicants to compete could result in a finding of
     noncompliance if the evidence suggests the practice has the effect
     of avoiding meaningful outside recruitment.

110. Questions were also raised as to the status of part-time employees,
     interns and former employees. Under our former EEO Rule, we
     expected broadcasters to recruit for part-time positions but did
     not focus on part-time hires in our review of EEO programs.[^182]
     We see no reason to depart from this policy, which serves to
     minimize burdens on broadcasters, especially smaller broadcasters.
     We will include a provision in our Rule clarifying that, in the
     case of part-time hires, broadcasters need only substantially
     comply with the requirement to recruit for every vacancy. With
     respect to interns, we would expect that they would ordinarily
     constitute temporary hires or non-employee volunteers. They would
     thus not be subject to our recruitment requirements.[^183] However,
     a decision to employ them permanently would be a hire subject to
     recruitment. Finally, no good reason has been cited for exempting
     hires involving former employees from recruitment requirements.
     Thus, we will expect recruitment for those hires.

111. [Analysis/Recordkeeping]{.underline}. In the *NPRM*, we proposed
     that broadcasters analyze the success of their recruiting efforts
     in attracting minorities and females to apply for vacancies. We
     proposed requiring broadcasters to maintain records as to the race,
     national origin, and gender of all applicants generated by each
     recruitment source for each vacancy in order to assess the
     effectiveness of its recruitment efforts. We requested comments as
     to how broadcasters should analyze the success of their recruitment
     efforts and whether extensive applicant pool records were necessary
     to that process.[^184]

112. Many broadcasters questioned the need for analysis based on
     extensive applicant pool data. They contend that recordkeeping is
     burdensome because it relies primarily on voluntary
     self-identification by applicants as to their racial and ethnic
     status. Commenters assert that it is difficult and time-consuming
     to compile such data in a reliable manner and that resources could
     be better devoted to other EEO efforts. They also urge that many
     job applicants resent inquiries as to race and ethnicity because
     they do not understand the relevance of such information to their
     applications for broadcast employment.[^185]

113. Our purpose in proposing the collection and evaluation of applicant
     pool data, including the race, ethnicity, gender, and referral
     source of applicants, was to ensure that broadcasters are engaging
     in meaningful outreach and to provide a basis upon which
     broadcasters can evaluate their efforts. However, we have no desire
     to impose data collection and recordkeeping requirements on
     broadcasters that may be unnecessary for purposes of accomplishing
     the goals of our EEO rules. We believe that our goal of ensuring
     that broadcasters engage in broad outreach so that all qualified
     job candidates are informed of employment opportunities in the
     industry can be accomplished through compliance with the core
     obligation to recruit widely for job vacancies coupled with the use
     of the supplemental recruitment measures, without requiring the
     collection or reporting to the Commission of applicant pool data.
     Therefore, broadcasters who elect to utilize the supplemental
     recruitment measures we have adopted will not be required to
     maintain data concerning the recruitment source, race, ethnicity,
     and gender of their applicants to comply with this rule. However,
     if a broadcaster wishes to avail itself of the option of dispensing
     with the supplemental recruitment measures and designing its own
     program, we do not think it is unreasonable to require it to
     collect applicant pool data demonstrating that its outreach efforts
     are inclusive. We note that our decision in this regard is not
     intended to relieve broadcasters of recordkeeping requirements
     imposed under other federal and state laws.

114. Regardless of the chosen approach, we expect a broadcaster to
     utilize the relevant data concerning its recruitment efforts as
     part of ongoing efforts to analyze the productivity of its
     recruitment efforts in achieving broad outreach to all segments of
     the community, including minorities and women, and to determine
     whether any modifications in its EEO efforts or recruitment sources
     are warranted. We note in this respect that such modifications can
     extend beyond merely adding new sources if existing sources are not
     productive. They can also encompass efforts to contact unproductive
     sources in order to develop a relationship that may encourage the
     sources to become more productive.

115. Data as to the recruitment sources of the broadcaster's
     interviewees and hirees (in the case of those broadcasters which
     opt to employ the supplemental recruitment measures) or applicant
     flow data (in the case of other broadcasters) will be one source of
     information concerning a broadcaster\'s EEO efforts that we may, as
     warranted, utilize in determining whether the broadcaster has
     demonstrated compliance with our EEO Rule. Thus, in appropriate
     cases, such data will be one pertinent source of information in
     making our overall determination as to whether the broadcaster made
     serious efforts to achieve broad outreach to all segments of the
     community, including minorities and women. Our ultimate
     determination will be premised on all relevant factors concerning a
     broadcaster\'s EEO efforts, not on statistical records alone. Some
     of the other relevant factors include the reach of the recruitment
     sources utilized (such as the circulation of media in which
     vacancies were advertised), whether the broadcaster adequately
     analyzed the results of its efforts, implemented effective measures
     to correct any problems, and avoided excessive reliance on
     word-of-mouth recruitment. In assessing a broadcaster\'s efforts,
     we will not consider the extent to which minorities and women were
     actually hired or the racial, ethnic, or gender composition of a
     station employment unit's workforce.

116. Under either approach, a broadcaster should maintain a list of
     vacancies for full-time permanent positions in its station\'s
     employment unit filled during the pertinent review period,
     identified by job title, as well as copies of any documentation
     necessary to show all vacancy-specific recruitment efforts
     undertaken. This could include such traditional verification as
     copies of newspaper advertisements. It could also include
     electronic records such as copies of e-mails or web pages. The
     records should be sufficient to show the name of the recruitment
     source, its address, telephone number, e-mail address (if
     applicable), contact person, and how the source received its
     notification (*e.g.*, regular mail, fax, e-mail, etc.). In the case
     of a broadcaster utilizing the supplemental recruitment measures,
     the records should include proof that notification has been
     provided to organizations that have asked to be notified of job
     vacancies.

117. Next, we will require that broadcasters utilizing the supplemental
     recruitment measures retain documentation necessary to verify that
     they have engaged in the activities required under our second
     supplemental recruitment measure, such as participation in job
     fairs. Because of the diverse nature of these activities, we cannot
     prescribe precisely the type of records to be maintained. However,
     they should be sufficient not only to verify that some activity
     occurred, but also to fully disclose the nature of the activity and
     the scope of the broadcaster\'s participation in it, including the
     station personnel involved. Our purpose in adopting this
     requirement is to ensure that the activities engaged in by
     broadcasters are consistent in furthering the intent of our Rule.

118. We shall also expect broadcasters who elect to utilize the
     supplemental recruitment measures to retain records of the referral
     source for each individual whom it interviews or hires for a
     full-time position. This information is designed to provide a
     starting point for a broadcaster to analyze the success of its
     recruitment efforts. Thus, if it appears that, despite a
     broadcaster's outreach efforts, an excessive number of hires or
     interviewees are coming from inside, \"word-of-mouth\" recruitment
     sources, we will expect the broadcaster to consider whether its
     outside recruitment efforts are achieving a sufficiently broad
     outreach and attracting qualified candidates. Similarly, a
     broadcaster should consider the sufficiency of its recruitment
     efforts if it discovers that certain segments of the community are
     not being effectively notified of job vacancies. If the broadcaster
     determines, based on its analysis, that its recruitment efforts are
     not achieving a broad outreach or not attracting qualified
     candidates, then we expect the broadcaster to make any
     modifications to its program necessary to correct the deficiency.
     \"Inside sources\" include primarily personal or business
     acquaintances, such as employees or other broadcasters, who are
     referring other personal or business acquaintances. They also
     include fortuitous sources, such as \"walk-ins.\" We are requiring
     that interviewee referral source data be kept because we believe
     that data concerning the recruitment source of interviewees, as
     well as hires, will provide the broadcaster a preliminary basis for
     assessing its efforts --- in particular, the sources of its most
     qualified job applicants --- without creating a significant
     recordkeeping burden. Thus, the broadcaster can easily inquire as
     to the recruitment source at the interview, if it is not previously
     known.

119. As noted, we will require those broadcasters which elect not to
     utilize the supplemental recruitment measures to maintain data
     concerning the recruitment source, race, ethnicity, and gender of
     applicants. Insofar as a broadcaster chooses to utilize applicant
     flow data, the following guidelines are provided in order to
     minimize the burdens. As part of our former EEO requirements, we
     required the reporting of \"referrals.\" For purposes of this rule,
     the Commission does not expect the separate tracking of
     \"referrals," as distinct from applicants, because it is
     potentially confusing. For example, in the past, some have viewed a
     "referral" as synonymous with an "applicant," whereas others have
     viewed a "referral" as including a person who has been referred to
     the station, even though the person may not be known to the
     referring source and may not even be seeking employment.[^186]

120. We also emphasize that, in the case of those broadcasters who
     utilize applicant pool data, there is no requirement that the
     composition of applicant pools be proportionate to the composition
     of the local work force. However, few or no females or minorities
     in a broadcaster's applicant pools may be one indication (and only
     one indication) that the station's outreach efforts are not
     reaching the entire community. The representation of females and
     minorities in applicant pools is only one factor that we will look
     at in determining whether a broadcaster's outreach program is
     inclusive. 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. The only purpose of the data
     collection is to give the broadcaster, the public, and the
     Commission more information by which to monitor the effectiveness
     of a station's outreach efforts so that the broadcaster can take
     appropriate action to modify its outreach efforts should the
     information indicate that they are not reaching the entire
     community.

121. We will require that all records documenting outreach efforts be
     retained until the grant of the renewal application covering the
     license term during which the hire or activity occurs. However, in
     order to lessen any burdens, we will adopt the proposal of several
     commenters that records may be maintained in an electronic format,
     *e.g.*, by scanning pertinent documents into a computer format. In
     addition to reducing burdens, computer records can be backed up,
     which should lessen the chances of records being lost. We caution
     broadcasters that, absent a showing of extraordinary circumstances,
     we will not credit claimed activities that cannot be supported by
     records.

122. Although we are imposing some recordkeeping requirements on
     broadcasters, the new EEO Rule allows a broadcaster the flexibility
     to choose the outreach methods that best suit the characteristics
     of a particular employment unit, such as staff size and location,
     and there are different data collection requirements for each
     outreach method. Moreover, broadcasters may utilize electronic
     methods of keeping records, filing Statements of Compliance with
     the Commission, and disseminating information about job vacancies.
     Therefore, we conclude that the recordkeeping requirements we adopt
     in this *Report and Order* will not place undue burdens on
     broadcasters.

123. [Public File]{.underline}. Given the Commission\'s limited
     resources, we believe that it is important that the community have
     a role in monitoring broadcaster compliance with our EEO Rule. In
     order to facilitate public input, we will require that all
     broadcasters place in their public files annually, on the
     anniversary of the date they are due to file their renewal
     applications, the following information, which we will refer to as
     the EEO public file report: (1) a list of all full-time vacancies
     filled by the station employment unit during the preceding year,
     identified by job title; (2) for each such vacancy, the recruitment
     source(s) utilized to fill the specific vacancy (including, in the
     case of broadcasters utilizing the supplemental recruitment
     measures, organizations entitled to notification of vacancies,
     which should be separately identified), including the address,
     contact person, and telephone number of each source; and (3) a
     statement as to whether they have elected to utilize the
     supplemental recruitment measures provided for in the EEO Rule. In
     addition, broadcasters which elect to utilize the supplemental
     recruitment measures will be required to include in their public
     file a list of the recruitment source that referred the hiree for
     each full-time vacancy; data reflecting the total number of persons
     interviewed for full-time vacancies during the preceding year and,
     for each recruitment source utilized in connection with any such
     vacancies, the total number of interviewees referred by that
     source; and a list and brief description of supplemental
     recruitment measures undertaken pursuant to the second supplemental
     recruitment measure discussed above during the preceding
     year.[^187] Those broadcasters which do not elect to utilize the
     supplemental recruitment measures will be required to include in
     their public file, for each recruitment source utilized for any
     full-time vacancy during the preceding year, the total number of
     applicants generated by that source, the number of those applicants
     who were female, and the number of those applicants who were
     minority, identified by the applicable racial and/or national group
     with which each applicant is associated.

124. We shall amend the public inspection file rules, Sections 73.3526
     and 73.3527, to reflect these new requirements.[^188] Broadcasters
     are free to utilize any format in their public file report to avoid
     unnecessary duplication as long as the report clearly provides the
     information requested. For instance, if a broadcaster utilized the
     same recruitment sources for all its vacancies, it may maintain a
     single list of those sources, indicating that they were used for
     all vacancies. If a broadcaster utilized different sources for
     different vacancies, it may maintain a master list of all its
     sources and utilize a cross-reference system to show which sources
     were used for which vacancies. The EEO public file report need not
     be routinely submitted to the Commission, except in two instances.
     The EEO public file report covering the year preceding the filing
     of a renewal application will be submitted with that application as
     an attachment to Form 396, and will be one basis for our review of
     the broadcaster\'s compliance at renewal time. Also, for stations
     subject to mid-term reviews, the EEO public file report for the
     one-year period preceding the mid-term review will be filed with
     the Commission and will be one basis for mid-term reviews. Renewal
     and mid-term review procedures are discussed in greater detail
     below. We also require that, if a broadcaster has a web site for
     its station, it post that station's EEO public file report on that
     site at the same time that it places it in the station's public
     file.

125. [Relief for Qualifying Stations]{.underline}. The Commission
     requested comment on a proposal to exempt certain small stations,
     *e.g.*, those with ten or fewer full-time employees, or those
     located in small markets, from certain EEO recordkeeping and
     reporting requirements.[^189] The proposal to grant relief to small
     staff stations would increase the employment reporting and
     recordkeeping threshold of fewer than five full-time employees to,
     *e.g.*, ten or fewer full-time employees. There was no specific
     proposal regarding the appropriate market threshold for exempting
     stations in small markets. The *NPRM* requested comment on several
     factors to be considered when contemplating small station relief,
     including a case in which the court rejected a similar increase in
     employment threshold, *Office of Communications of the United
     Church of Christ v. FCC*, 560 F.2d 529, 532 (2nd Cir. 1977)
     ("*UCC*"); the possibility that the exemptions proposed would
     require approval from the Small Business Administration prior to
     implementation; and Section 334 of the Communications Act, which
     prohibits revision of EEO regulations and forms pertaining to
     broadcast television licensees and permittees.[^190] Although a few
     commenters discussed small market exemptions, the majority of
     commenters who addressed this topic focused on the proposal to
     increase the employment threshold for stations.

126. While we believe that small market stations should be granted some
     relief from EEO requirements because of difficulties those stations
     have competing for employees with stations in larger markets, we
     believe that such relief is already built into the new broadcast
     EEO Rule, which affords flexibility to tailor EEO programs to a
     station\'s particular circumstances, including market size.[^191]
     For instance, stations in small markets may find that they need
     fewer recruitment sources to achieve broad outreach than might be
     the case in larger markets. Also, because stations in smaller
     markets are likely to attract fewer applicants, they may find the
     Alternative Recruitment Program a less burdensome method of
     assessing the effectiveness of their outreach. In contrast, we
     believe that small staff stations warrant some additional relief
     from the EEO Rule adopted in this *Report and Order* because, as
     argued by some commenters, such stations have limited personnel and
     financial resources to carry out those requirements.[^192] In
     particular, we believe stations that are part of employment units
     with five to ten employees, the smallest staff stations subject to
     our EEO program requirements, would encounter these difficulties to
     such an extent that additional relief for these stations from EEO
     program requirements is warranted. However, we agree with other
     commenters who contend that a total exemption from the EEO Rule for
     stations with five to ten full-time employees would be ill-advised
     given these stations\' important role in providing entry-level
     opportunities into the broadcast industry.[^193] Furthermore, we
     believe that a total exemption for these stations is no longer
     necessary given, as already discussed, the more flexible EEO
     requirements for broadcast stations adopted in this *Report and
     Order*. Therefore, similar to an approach suggested by AWRT,[^194]
     we will require stations that are part of an employment unit with
     five to ten full-time employees which elect to employ the
     supplemental recruitment measures to select only two options from
     the second supplemental recruitment measure menu during each
     two-year period, rather than the four required of larger stations.
     Moreover, as discussed below, broadcasters may elect to forego the
     supplemental recruitment measures entirely and simply collect
     applicant flow data demonstrating that their recruitment efforts
     are inclusive. This may be less burdensome to many small
     broadcasters, which, in our experience, tend to have relatively few
     vacancies. Also, as discussed below, although we are extending
     mid-term review procedures required by Section 334 of the
     Communications Act for television stations to radio stations, we
     will exempt radio stations that are part of an employment unit with
     five to ten employees from this requirement.[^195] Given their
     small staffs and relatively few vacancies, we do not believe it
     would be a productive use of scarce Commission resources to conduct
     mid-term reviews of small radio stations' EEO practices.

127. Qualifying stations will be expected to meet all other EEO
     requirements, including, *e.g.*, filing Statements of Compliance
     and Forms 396 and 395-B. We emphasize that a station will not
     qualify for this relief if it shares one or more employees with one
     or more commonly owned stations in the same market and their
     combined staffs total more than ten full-time employees. Stations
     in such a situation are considered one employment unit and are
     required to report all of their employees on one Annual Employment
     Report, as described below. We will continue to follow our policy
     of not requiring station employment units with fewer than five
     full-time employees to demonstrate compliance with EEO program
     requirements.

128. Our decision today is consistent with the *UCC* decision. That case
     held that when the Commission changes the criteria for application
     of existing regulatory requirements, it must articulate a rational
     explanation for the change.[^196] Here, the Commission will
     continue applying its EEO requirements to stations that are part of
     an employment unit with five or more employees, the same threshold
     it has applied in the past. We are simply tailoring our
     requirements to minimize undue burdens on certain stations. In
     fashioning the new requirement that stations undertake certain
     supplemental recruitment measures selected from a \"menu,\" we have
     decided to require stations with more employees to undertake more
     of those measures than smaller staff stations because the latter
     have fewer resources to carry out those requirements. In addition,
     we are exempting radio station employment units with five to ten
     employees from the new mid-term review of radio stations. The court
     acknowledged in *UCC* that \"\[w\]hen initial cut-off or threshold
     criteria for determining the applicability of particular
     regulations are involved, the agency\'s reasoning need at times
     consist only of \'practical considerations of
     administration.\'\"[^197] Since these are new requirements and
     reasonable practical considerations have guided our choice of
     criteria for applying them, our determination is consistent with
     *UCC*. We note that SBA has approved the approach we are adopting
     for small broadcast stations, as well as the similar approach we
     are adopting for small cable entities, discussed below.[^198]

129. [Other Matters Concerning Broadcast EEO Rule]{.underline}. We
     proposed in the *NPRM* to require broadcasters to analyze various
     specific recruitment practices, including such areas as promotions
     and selection techniques or tests, to ensure that they are
     nondiscriminatory. We will incorporate these provisions into our
     EEO Rule, with minor modifications, with the exception of the item
     relating to the analysis of recruitment efforts.[^199] We will
     address that topic in a separate rule provision. Also, two
     commenters assert, with specific reference to selection techniques
     and tests, that these provisions would impose requirements more
     stringent than those imposed by Title VII. We do not intend to
     impose any substantive requirements regarding selection techniques
     and tests that go beyond those imposed by Title VII. Further, we
     would treat any complaint that a broadcaster had in fact
     discriminated in the specified areas in accordance with our general
     policy concerning individual complaints of employment
     discrimination. Thus, as discussed above, we will, in general,
     decline to review individual complaints of discrimination pending a
     finding of discrimination by the EEOC or court. However, we may act
     prior to such a finding if we find that action is warranted in
     light of circumstances in a particular case.

130. In the *NPRM*, we proposed to include in our EEO Rule language
     clarifying that it is not intended to require that any person be
     given preferential treatment based on race, color, national origin,
     religion, or gender. We will adopt this language to clarify the
     intent of our EEO Rule.[^200]

131. In the *NPRM*,[^201] we discussed the option of requiring that the
     number of recruitment sources be tailored to the size of the local
     minority labor force. In light of the flexible recruitment program
     we are adopting, we find it unnecessary to adopt this proposal. We
     also asked whether we should continue our prior practice of not
     requiring the filing of EEO recruitment information concerning
     minorities in markets where the minority labor force is less than
     five percent.[^202] We conclude that this practice is no longer
     justified because our EEO Rule emphasizes broad and inclusive
     outreach rather than recruitment methods that specifically target
     minority and female applicants. Accordingly, we will discontinue
     this practice.

132. MMTC urges that we should expand the scope of our broadcast EEO
     Rule to include headquarters offices. It notes that EEO rules
     applicable to cable entities apply to headquarters offices.
     However, the inclusion of headquarters offices in the cable EEO
     rules is the result of a statutory requirement.[^203] There is no
     similar statutory requirement applicable to broadcasters. The issue
     of whether we can or should extend the scope of our broadcast EEO
     Rule to encompass entities other than licensees is beyond the scope
     of this proceeding.

133. Some commenters suggest that we should accept compliance with OFCCP
     requirements as compliance with our EEO Rule in the case of those
     broadcasters subject to those requirements. We will not adopt this
     proposal. OFCCP regulations place a general nondiscrimination
     requirement on entities with federal contracts in excess of
     \$10,000.[^204] The regulations require an \"affirmative action
     compliance plan\" for employers who have 50 or more employees and
     federal contracts of \$50,000 or more.[^205] Enforcement of the
     plans is based primarily on compliance evaluations that may occur
     at the discretion of OFCCP.[^206] The requirements of OFCCP differ
     in scope and enforcement mechanisms from the EEO Rule we are
     adopting herein. It would be confusing to the public to have a
     separate agency with separate requirements responsible for the EEO
     outreach efforts of some broadcasters. It would also be
     counterproductive to our desire to encourage joint industry efforts
     to develop effective recruitment methods if some segments of the
     industry were not subject to our EEO Rule. Moreover, adoption of
     this proposal would greatly complicate enforcement of our rules by
     making it necessary for us to consider complaints based on alleged
     violations of the requirements of another agency, or to deal with
     situations where a broadcaster that has claimed exemption based on
     OFCCP compliance is later found by OFCCP not to be in compliance
     with its requirements. Finally, we do not believe that our EEO Rule
     will create significant duplication. A broadcaster may, of course,
     claim credit for steps taken to comply with OFCCP requirements if
     they also serve to establish compliance with our EEO Rule.

134. [Enforcement]{.underline}. Some broadcast representatives argue
     that a mandatory EEO program is unnecessary,[^207] that it is
     duplicative of the EEOC,[^208] or that it is too vague a standard
     to enforce.[^209] However, many commenters assert that the best way
     to ensure that broadcasters implement viable EEO practices in their
     recruitment programs is for the Commission to enforce mandatory EEO
     provisions.[^210] MMTC argues that, in the past, voluntary efforts
     to integrate public schools and businesses failed and statutes were
     necessary to prevent discrimination.[^211] MMTC also maintains
     that, before the Commission adopted its EEO Rule, the broadcast
     industry had 40 years to provide equal opportunity voluntarily but
     failed to do so and that the industry commenters to the *NPRM*
     could have voluntarily implemented many of their proposals over the
     last 30 years since the EEO Rule was adopted but have not done
     so.[^212] In addition, MMTC asserts that enforcement of mandatory
     provisions will not prevent any broadcaster from implementing a
     voluntary program that carries out steps that go beyond Commission
     EEO requirements.[^213] As part of its proposal for a "zero
     tolerance policy," MMTC urges that we should more carefully
     identify habitual EEO violators, broaden and improve the
     effectiveness of our inquiry procedures, and not wait eight years
     until renewal time to assess EEO compliance.[^214] In order to
     ensure that licensees will comply with the requirements of the EEO
     Rule, we believe that certain enforcement provisions are necessary
     and we outline them below.

135. NAB proposes that stations be required to certify compliance with
     the Commission\'s EEO Rule every two years and to maintain
     documentation that proves they have properly certified their
     compliance.[^215] NAB also suggests that licensees should make the
     supporting documentation available to the Commission for its review
     but that the public file should contain only the compliance
     certification and no supporting documentation.[^216] AWRT suggests
     that broadcasters should evaluate their EEO programs at least every
     two years and should file a report at least every four years that
     covers at a minimum the previous year\'s EEO efforts.[^217] AWRT
     states that, by requiring reports at least every four years,
     broadcasters would be filing EEO efforts reports at mid-term and at
     the time they file for renewal.[^218] Our new requirements for a
     Statement of Compliance and for radio station mid-term reviews,
     described below, incorporate aspects of both of these proposals, as
     well as MMTC's "zero tolerance" policy.

136. Every two years, except in the renewal year when all broadcast
     licensees will file a Broadcast Equal Employment Opportunity
     Program Report (Form 396), all television and radio licensees that
     are part of an employment unit with five or more full-time
     employees will be required to review their EEO programs and file
     with the Commission a Statement of Compliance indicating whether
     they have complied with the Commission\'s EEO Rule during the
     two-year period prior to the date of the Statement. The Statement
     will be a new form (FCC Form 397, described more fully in the
     section of this *Report and Order* dealing with forms). If a
     station believes that it was not, or may not have been, in
     compliance, we will require that it submit an appropriate
     explanation. Licensees will file the Form 397 every second, fourth
     and sixth year of the license term on the anniversary of the date
     that they are due to file for renewal of their licenses, resulting
     in the filing of three Statements of Compliance during a license
     term. Form 397 will require a statement as to the approach the
     broadcaster intends to use during the next two-year period and
     broadcasters may change their election between the two approaches
     (supplemental recruitment measures or alternative recruitment
     program) at the time they file Form 397. Requiring filing of a
     Statement of Compliance periodically during the license term will
     encourage licensees to evaluate their EEO efforts on an ongoing
     basis instead of only at renewal time. It will also encourage
     compliance with the EEO Rule on a continuing basis instead of only
     at the end of an eight-year license term, substantially fulfilling
     that aspect of MMTC's zero tolerance policy urging that the
     Commission engage in enforcement efforts throughout a license term
     as well as at renewal time.[^219]

137. In the eighth and final year of their license term, along with
     their renewal application, all broadcast licensees will file Form
     396, indicating whether they have complied with the outreach
     provisions of the EEO Rule, attaching a copy of the station\'s EEO
     public file report covering recruitment activity for full-time
     positions during the previous year, and providing a narrative
     statement in which they describe how the station achieved broad and
     inclusive outreach. Broadcasters may also change their election
     between the two approaches (supplemental recruitment measures or
     alternative recruitment program) designed to ensure broad
     recruitment outreach at the time they file their renewal
     applications. Form 396 will also require a statement as to the
     approach the broadcaster intends to use during the next two-year
     period.

138. In the *NPRM*, we requested comment on a new standard for mid-term
     review of television licensees\' employment practices.[^220] The
     previous mid-term review standard required a station to compare its
     employment profile with the applicable labor force, a practice that
     we are discontinuing in response to the *Lutheran Church* decision.
     We disagree with NAB\'s argument that Congress is the appropriate
     entity to determine the new standard for mid-term review.[^221]
     Section 334 of the Communications Act states that the Commission
     shall \"require a mid-term review of television broadcast station
     licensees\' employment practices\....\" Congress left the standard
     of review for mid-term reviews to the Commission\'s discretion and
     the Commission fashioned the previous mid-term review standard.
     Therefore, the Commission is required by statute to conduct
     mid-term reviews and to fashion an appropriate review standard, and
     we have the authority to change the standard of review without
     first seeking Congressional approval. Although several commenters
     made suggestions regarding the mid-term review,[^222] we believe
     that the process that we have selected is the most appropriate,
     providing us with ample information to assess a licensee\'s EEO
     program, while not being overly burdensome to licensees.

139. We also believe that, in light of the longer eight-year license
     terms currently in effect, it is appropriate to extend the mid-term
     review process to radio station employment units with more than ten
     full-time employees. This will facilitate more frequent monitoring
     of the effectiveness of a station's EEO efforts both by the station
     itself and by the Commission and the public. In this respect, we
     concur with the proposal in MMTC's zero tolerance policy that
     review of EEO efforts should not be limited to renewal time.

140. We agree with MMTC that, to ensure effective Commission
     enforcement, mid-term reviews should be \"more than mere
     box-checking.\"[^223] Accordingly, we will require that station
     employment units subject to mid-term review file with Form 397 the
     EEO public file report covering recruitment activity for full-time
     positions during the previous year, or from the date the licensee
     acquired the station, if less than a year. This mid-term filing
     will be due four years after the date the most recent renewal
     application was due to be filed. Mid-term reviews will be based on
     review of the Statement of Compliance, including review of the data
     contained in the EEO public file report filed at the time of the
     mid-term review.

141. Because the filing dates for the Statements of Compliance and EEO
     public file reports are tied to the date of filing of renewal
     applications, the due dates will apply to a given station
     regardless of when the licensee acquired the station. Consequently,
     if there is a substantial change of ownership requiring approval
     pursuant to FCC Form 314 or FCC Form 315 during the two-year period
     to be covered by a Statement of Compliance or during the one-year
     period covered by an EEO public file report, the new licensee will
     file the Statement and the report by the due date. However, when
     determining the bases for the Statement and the EEO public file
     report, the new licensee will consider only the recruitment efforts
     it conducted concerning full-time positions during the period it
     controlled the station. Thus, in these cases, the period covered by
     the Statement of Compliance may be less than two full years and the
     period covered by the EEO public file report may be less than one
     full year. Likewise, a mid-term review may cover a period of less
     than one year, because the mid-term review will cover only the
     licensee's recruitment efforts concerning full-time positions
     during the period it controlled the station, if less than a year.

142. If a station is subject to a time brokerage agreement, the
     licensee\'s Statement of Compliance, Form 396 and EEO public file
     report will include data concerning only its own recruitment
     efforts for full-time positions and not the efforts of the broker.
     If a licensee is a broker of another station or stations, however,
     its recruitment activity concerning full-time positions at the
     brokered station(s) should be included in the data on which the
     licensee-broker\'s own Statement of Compliance, Form 396 and EEO
     public file report are based concerning its own station. If a
     licensee-broker owns more than one station, it shall include its
     recruitment activity concerning full-time positions at the brokered
     station in the Statements of Compliance, Forms 396 and EEO public
     file reports for its own station that is most closely affiliated
     with, and in the same market as, the brokered station. If a
     licensee-broker does not own a station in the same market as the
     brokered station, then it shall include such information in the
     Statements of Compliance, Forms 396 and EEO public file reports for
     its own station that is geographically closest to the brokered
     station.

143. The first Statement of Compliance after the effective date of this
     *Report and Order* will be due June 1, 2000, to be filed by
     television stations in the District of Columbia, Maryland,
     Virginia, and West Virginia, whose licenses expire on October
     1, 2004. At that time, as part of the mid-term review process, they
     will also be required to file a copy of their EEO public file
     report concerning positions after these rules become effective. The
     first Statement of Compliance for radio stations will be due on
     June 1, 2001, to be filed by radio stations in the District of
     Columbia, Maryland, Virginia, and West Virginia, whose licenses
     expire on October 1, 2003. Thereafter, television stations in the
     December 1, 2004, renewal group will file Statements by August 1,
     2000, and radio stations in the December 1, 2003, renewal group
     will file by August 1, 2001, and so on for all television and radio
     renewal groups. As we begin this system, the earliest Statements
     will cover less than two full years. Licensees filing Statements of
     Compliance at the beginning of the implementation of this new EEO
     Rule and licensees who acquire stations during a license term may
     reasonably pro-rate their use of recruitment menu items based on
     the period of time actually available if their Statement of
     Compliance would be based on less than a full two-year period. For
     example, if a licensee acquired a station only a year before a
     Statement of Compliance for that station was due, a licensee would
     be expected to have undertaken only two menu options during that
     time period. Further, licensees filing Statements of Compliance
     during the initial two year period after our Rule becomes effective
     need only certify as to their compliance since the effective date
     of the Rule, rather than the period of two years specified in the
     form. Also, in the case of licensees subject to mid-term review
     during the first year after our Rule becomes effective, the EEO
     public file report accompanying the Statement of Compliance need
     only include information concerning activities since the effective
     date of the Rule, rather than the full year ordinarily covered by
     the EEO public file report. The effective date of the Rule will be
     determined as set forth in paragraph 235, below.

144. The Statement of Compliance, EEO Public File Report and Form 396
     should be based on recruitment efforts documented in items
     contained in a station\'s own records. The Commission\'s broadcast
     public file rules, 47 C.F.R. §§ 73.3526 and 73.3527, will be
     amended to require licensees to maintain copies of their most
     recent Statement of Compliance. Also, each year on the anniversary
     of the date a licensee is due to file its renewal application(s),
     it must place in its public file a copy of its EEO public file
     report. In addition, a station should retain any records necessary
     to document its recruitment efforts, depending on the approach the
     station has chosen, even though the records will not be required to
     be placed in the public file or filed with the Commission on a
     regular basis.[^224] As part of an inquiry, the Commission may
     request information from the licensee in addition to that contained
     in the public file, as described below. These records could include
     copies of letters notifying sources of job openings, copies of the
     station\'s job listings in newspapers or on web sites, and, if
     applicable, copies of requests by community organizations that they
     be notified of openings and copies of notices sent to them,
     information verifying participation at job fairs, and other similar
     types of outreach information.

145. We agree with several commenters who favor random and/or targeted
     inquiries by the Commission to verify compliance with the EEO Rule
     and we will substantially implement those recommendations.[^225]
     Thus, in order to verify compliance with the EEO Rule and the
     accuracy of the Statement of Compliance, Form 396 and the EEO
     public file report, the Commission may send inquiries to licensees.
     The Commission may at random conduct an inquiry of a licensee
     requesting information relating to the licensee\'s compliance with
     the EEO Rule. In addition, we will perform random audits, including
     on-site audits.[^226] Specifically, each year we will randomly
     select for audit approximately five percent of all licensees in the
     radio and television services, ensuring that, even though the
     number of radio licensees is significantly larger than television
     licensees, both services are represented in the audit process. We
     may also conduct an inquiry if the Commission has evidence of a
     possible violation of the EEO Rule. Initially, the inquiry may
     request the contents of the station\'s public file. Further inquiry
     or inquiries may be conducted requesting additional documentation
     of recruitment efforts that is not in the public file. As part of
     its zero tolerance policy, MMTC urges that we should improve the
     effectiveness of our inquiries.[^227] We agree. Based on the
     circumstances of the case, the inquiry could potentially include 1)
     a request for data covering any period of the license term; and 2)
     interviews of witnesses, including any complainant and present or
     former station employees.

146. Licensees will be subject to a variety of sanctions and remedies
     for EEO Rule violations or deficiencies. Such violations or
     deficiencies might include, for example: engaging in
     discrimination; failure to file a Statement of Compliance when due;
     failure to file an EEO public file report when due; failure to file
     Form 396 when due; misrepresentation of outreach efforts or other
     information; non-responsiveness or evasion in responding to a
     written Commission inquiry; failure to recruit for all vacancies
     absent exigent circumstances; failure to widely disseminate
     information concerning vacancies for full-time positions; and
     failure to analyze routinely the adequacy of the various program
     elements in achieving broad outreach to all segments of the
     community. In the case of broadcasters which elect the supplemental
     recruitment measures options, violations or deficiencies would also
     include failure to undertake the required options listed in the
     supplemental recruitment measures menu; and failure to notify
     organizations that request vacancy notices. Also, it may constitute
     a violation of the EEO Rule if, based on all of the evidence, we
     determine that a licensee has attempted to evade our requirements
     through token or sham efforts, including, but not limited to
     situations where there is evidence that EEO efforts were not
     initiated until the final 12 months of the license term. Sanctions
     and remedies that may be issued by the Commission for deficiencies
     in licensees\' EEO compliance include admonishments, reporting
     conditions, forfeitures, short term renewal of license, or
     designation for hearing for possible revocation of license or
     denial of renewal. The appropriate sanction or remedy will be
     determined on a case-by-case basis. Sanctions will be greater in
     cases involving recidivism or continuous EEO non-compliance, and,
     based on the facts of each case, could raise a question of
     intentional discrimination. In sum, as suggested in MMTC's zero
     tolerance policy, we intend to carefully monitor compliance with
     our EEO Rule to uncover attempts to evade our requirements or
     egregious violations that may suggest discrimination.

147. The public may file complaints throughout the license term based on
     the Statement of Compliance or the contents of the public file.
     Complaints raising a properly documented question of a violation of
     the EEO Rule will be investigated or referred to the EEOC, as
     appropriate, immediately, not just at the end of the license term.
     The public may also file an informal objection or petition to deny
     an application based on EEO violations. The rules and policies
     already in place concerning settlements of petitions to deny and
     threats to file such petitions, as delineated in 47 C.F.R. §§
     73.3588 (petitions) and 73.3589 (threats to file), and *Prevention
     of Abuses of the Renewal Process*, 4 FCC Rcd 4780 (1989), will
     continue to be applied.

148. [Sunset]{.underline}. Some commenters urge the Commission to sunset
     its EEO rules at some time. The Commission\'s EEO regulations help
     to ensure that all qualified persons will continue to have an equal
     opportunity to compete for job openings. Broad and inclusive
     outreach measures help to deter discriminatory practices, by
     providing everyone with a chance to be considered for hiring
     opportunities. Congress has made its intent clear that we should
     enforce outreach and nondiscrimination requirements for broadcast
     television providers, cable television providers and MVPDs, and we
     believe that such requirements are equally necessary for radio
     broadcasters, as discussed above. As we must honor congressional
     intent and cannot, in any event, predict when discontinuance of EEO
     regulations may be warranted, we will not establish in advance a
     date on which our EEO regulations will sunset.

     ii\. [Religious Broadcasters]{.underline}

149. As we stated in the *NPRM*, we believe it appropriate to codify in
     our EEO Rule that religious broadcasters may establish religious
     belief or affiliation as a qualification for all radio station
     employees.[^228] Religious broadcasters who establish religious
     affiliation as a qualification for a job position will not be
     required to comply with the FCC\'s specific recruitment
     requirements for that position.[^229] Rather, they will be expected
     to make reasonable good faith efforts to recruit widely among their
     co-religionists. This approach acknowledges that the more specific
     recruitment requirements set forth above may not be suited to
     recruitment limited to members of a certain faith. With respect to
     television station employees, we will continue to allow religious
     broadcasters to establish religious belief or affiliation as
     qualification as a nonbinding policy, rather than a rule, due to
     the limitations imposed by Section 334 of the Communications Act.
     Although, as discussed above, we do not believe that Section 334
     prevents us from adopting new EEO program requirements to replace
     those invalidated by the court in *Lutheran Church*, that section
     does prevent us from revising the nondiscrimination requirement,
     which was not invalidated, as applied to television licensees.

150. In keeping with *Streamlining Broadcast EEO Rule and Policies*, 13
     FCC Rcd 6322 (1998) (\"*Order and Policy Statement*\"), we proposed
     to define a religious broadcaster as a licensee that is, or is
     closely affiliated with, a church, synagogue, or other religious
     entity, including a subsidiary of such an entity.[^230] Should a
     question arise as to whether a broadcaster falls under this
     definition, we proposed to make an individual determination based
     upon an evaluation of the religious entity\'s characteristics,
     including whether the entity operates on a nonprofit basis, whether
     it has a distinct religious history, and whether the entity\'s
     articles of incorporation set forth a religious purpose.[^231]

151. We have determined to follow the EEOC\'s approach and adopt our
     original proposal which contemplates individual case-by-case review
     with multi-factor analysis whenever a question arises as to whether
     a licensee is eligible to claim religious broadcaster status.
     Courts have held that such initial determinations are necessary in
     order to determine if entities can avail themselves of religious
     exemptions, and must be performed on an individual case-by-case
     basis.[^232] Accordingly, we shall adopt our proposed definition of
     religious broadcaster as part of the anti-discrimination section of
     the EEO Rule.

152. In all cases, however, we will allow broadcasters to determine for
     themselves in the first instance if they qualify for religious
     broadcaster status. In this respect, we will rely on a licensee\'s
     good faith claim to religious broadcaster status. If a situation
     were to arise where we examine a licensee\'s claim to religious
     broadcaster status and disagree that a licensee qualifies as a
     religious broadcaster, for purposes of this rule, we will apply
     such a ruling prospectively as long as the broadcaster\'s claim to
     religious status was made reasonably and in good faith. Thus, no
     licensee whose claim that it qualifies as a religious broadcaster
     is made reasonably and in good faith will be penalized
     retroactively under this rule.

153. With respect to the *NPRM*, we terminated MM Docket No. 96-16, with
     the exception of the petition for reconsideration filed by ACLJ in
     response to *Order and Policy Statement*. We note that one of the
     bases for the petition was that *Order and Policy Statement* lacked
     a proper notice and comment period prior to its adoption. That
     issue was rendered moot with the issuance of the *NPRM* which
     requested comments on the policy adopted in *Order and Policy
     Statement*. The petition further contended that the recruitment
     requirements of our EEO Rule at that time violated *Adarand.* This
     issue was also rendered moot with the release of the *Lutheran
     Church* decision. With respect to the petition\'s other issues,
     ACLJ has filed up-to-date comments in this proceeding which address
     those same issues. Accordingly, we will dismiss ACLJ\'s petition
     for reconsideration and consider its comments in this *Report and
     Order*.

154. In response to comments filed by the Church State Council of
     Seventh Day Adventists (Adventists), the religious liberty and
     public policy arm of the Adventist Church in a five-state western
     region, and the American Center for Law and Justice (ACLJ), we
     clarify that religious broadcasters are not required to demonstrate
     the validity of a religious qualification as applied to each
     vacancy at their stations. [^233] As we indicated in the *NPRM*,
     religious broadcasters may use religious belief or affiliation as a
     qualification for all vacancies, unless they themselves determine
     otherwise.[^234] It is the licensee that makes this determination.

155. ACLJ submits that, under our proposal, religious broadcasters would
     still be required to complete and maintain \"virtually identical\"
     EEO forms that were required prior to the *Lutheran Church*
     decision.[^235] ACLJ asserts that under *Lutheran Church*, these
     compliance requirements are inherently unconstitutional and
     burdensome.[^236] As indicated below, we have revised our forms to
     address these concerns. Nonetheless, filing EEO forms is part of
     the normal duties of all who are granted broadcast licenses by the
     Commission. It has long been established that all broadcast
     licenses come with enforceable public obligations.[^237]

156. ACLJ also claims that the Religious Freedom Restoration Act
     (\"RFRA\"), 42 U.S.C. § 2000bb, *et seq.*, prohibits government
     imposition of recruitment standards on religious organizations. The
     RFRA prohibits \"\[g\]overnment\" from \"substantially
     burden\[ing\]\" a person\'s exercise of religion even if the burden
     results from a rule of general applicability unless the government
     can demonstrate the burden \"(1) is in furtherance of a compelling
     governmental interest; and (2) is the least restrictive means of
     furthering that compelling governmental interest.\"[^238] We reject
     ACLJ\'s argument that application of the FCC\'s EEO regulations
     violates the RFRA. The application of our EEO Rule will not
     substantially burden the exercise of religion since religious
     broadcasters are not required to comply with our specific
     recruitment requirements for vacancies with a religious
     qualification.[^239] Indeed, the very purpose of our Rule\'s
     religious qualification exemption was to ensure that religious
     broadcasters would not be burdened by impermissible governmental
     interference when conducting their religious affairs.[^240]
     Further, ACLJ did not demonstrate that the RFRA is applicable to
     our EEO Rule when applied to religious institutions that choose to
     be licensees of broadcast stations.[^241] We note that the Supreme
     Court has held that the RFRA is unconstitutional as applied to
     state action, but has not yet reached the issue of
     constitutionality with respect to federal action, as is the case
     here.[^242]

157. National Religious Broadcasters (NRB), a national association of
     radio and television broadcasters that fosters and encourages the
     broadcasting of religious programming, fears that Commission
     consideration of whether a licensee has a distinct religious
     history for purposes of determining eligibility for religious
     broadcaster status would discriminate against some religious
     entities that are not as well-established as others.[^243] We
     clarify that demonstrating "distinct religious history" is not a
     sole determining factor, and as indicated in the NPRM, is only one
     of several factors to be considered when determining religious
     broadcaster status.

158. Several commenters argue that the *NPRM*\'s consideration of a
     licensee\'s nonprofit operations for purposes of determining
     religious broadcaster status would unfairly prevent all for-profit
     religious broadcasters from claiming the religious qualification
     for their stations\' vacancies. Accordingly, they request that we
     eliminate nonprofit status as a determining factor.[^244] However,
     Americans United for Separation of Church and State (Americans
     United), argues that under Title VII, the Supreme Court has
     permitted employment on the basis of religion only with respect to
     the nonprofit activities of religious employers, so that our
     definition of religious broadcaster should not include for-profit
     religious organizations.[^245] We clarify that nonprofit status is
     not a sole determining factor and, as indicated in the *NPRM*, is
     only one of several factors to be considered when determining
     religious broadcaster status.[^246] Accordingly, a licensees\'s
     lack of nonprofit status will not automatically disqualify it from
     claiming religious broadcaster status. Also, although the Supreme
     Court has held that applying a Title VII exemption to a religious
     organization\'s nonprofit activities does not violate the
     Establishment Clause, the Court emphasized that its decision did
     not address for-profit activities.[^247] Therefore, we believe it
     premature to eliminate nonprofit status as a determining factor.
     Further, courts have considered nonprofit status in determining if
     an organization is secular or religious in nature.[^248]

159. Several commenters express concern that the *NPRM* allegedly
     defines \"religious broadcaster\" so as to exclude many religious
     broadcasters, particularly nondenominational evangelical
     Christians, who are not associated with any particular
     church.[^249] Some commenters recommend that the *NPRM*\'s
     definition be expanded to include broadcasters who air substantial
     amounts of religious programming.[^250]

160. We clarify that a religious broadcaster is not required to
     affiliate with a church or a specific denomination in order to
     qualify under our EEO Rule and policy as a \"religious
     broadcaster.\" As we stated in the *NPRM*, we define a religious
     broadcaster as a licensee which is, or is closely affiliated with,
     a church, synagogue, or other religious entity.[^251] We included
     the term \"religious entity\" in addition to \"church\" or
     \"synagogue\" in recognition of the fact that not all religious
     entities consist of formal churches or organized religions. Should
     a question arise as to whether a licensee constitutes a religious
     entity, we propose to evaluate the entity\'s characteristics,
     including, *inter alia*, a religious purpose in the articles of
     incorporation and a distinct religious history.[^252] These factors
     apply to both church affiliated and nondenominational religious
     broadcasters. Accordingly, commenters\' concerns that
     nondenominational licensees cannot qualify for religious
     broadcaster status are unwarranted.

161. We will not add the airing of religious programming alone as an
     alternative ground for treatment as a religious broadcaster under
     our EEO Rule and policy. Our religious qualification is for
     licensees that are religious broadcasters, not for licensees that
     air religious programming. Indeed, any licensee may air religious
     programming for any reason.[^253] However, we realize, based on
     comments, that religious broadcasters may air religious programming
     as part of their religious purpose. Therefore, we will consider
     religious programming as an additional factor to consider on a
     case-by-case basis when determining religious broadcaster
     status.[^254]

     iii\. [Delegated Authority]{.underline}

162. In the *NPRM*, we proposed to delete certain language in Section
     0.283 of the Commission's Rules, which requires the Chief of the
     Mass Media Bureau to refer certain matters to the Commission for
     disposition.[^255] Specifically, Section 0.283(b)(1)(iii) directs
     all petitions to deny, informal objections and other petitions
     against television and radio broadcasting applications for new or
     modified facilities or for renewal, assignment or transfer of
     control to be referred to the Commission if "*the applicant in
     question falls outside the applicable processing criteria in its
     employment of women and minorities*."[^256] Since use of the
     processing criteria, which involved a comparison of a station's
     employment profile with the local labor force, is inconsistent with
     the *Lutheran Church* decision, we proposed to amend this section
     by deleting its reference to the criteria and deleting the
     above-quoted phrase in its entirety. There were no comments filed
     specifically addressing this proposal. Accordingly, we will adopt
     the proposed amendment. We note that the Mass Media Bureau Chief is
     still required to refer to the Commission the above-cited petitions
     to deny and informal objections if the document "presents
     documented allegations of failure to comply with the Commission's
     Equal Employment Opportunity rules and policies," and to refer to
     the Commission "all forfeiture matters relating to the Commission's
     equal employment opportunity rules..."[^257]

     b\. [Forms]{.underline}

163. In a Memorandum Opinion and Order issued on September 30, 1998, the
     Commission suspended the requirement that television and radio
     broadcast licensees file Form 395-B until further notice while it
     considered adoption of new EEO rules that address concerns of the
     court in *Lutheran Church* and made any appropriate changes to its
     data collection procedures.[^258] As discussed above, we have
     concluded that the *Lutheran Church* decision does not undermine
     our authority to require broadcasters and cable entities to submit
     minority and female employment information to enable us to monitor
     industry employment trends. We sought comment in the *NPRM* on our
     belief that these data serve as a useful indicator of industry
     trends, and also emphasized that this information would not be used
     for screening or assessing compliance with our EEO requirements. We
     also invited comment on our proposal to eliminate various sections
     of the form, including comparisons of employment statistics with
     local labor force statistics, and part-time employment data.
     Several commenters addressing this issue agree that the Commission
     should continue to collect this information to analyze industry
     employment trends.[^259]

164. We hereby reinstate the requirement that licensees file Form 395-B
     to enable the Commission to monitor industry trends and report to
     Congress. We believe that it is particularly important for us to
     collect this data in order to monitor industry trends during the
     next several years because the EEO requirements and enforcement
     mechanisms that we adopt today differ in significant respects from
     those we have employed in the past. Thus, we need to monitor
     industry trends in order to assess, on an industry-wide basis, the
     effectiveness of the new rules in achieving our objectives of
     inclusive outreach and deterring discrimination. For example, an
     increase in the number of women and minorities employed in the
     broadcast and cable industries would indicate that our EEO
     requirements are effective in ensuring outreach. We emphasize that
     we will not hesitate to propose changes to these EEO rules if
     industry trends suggest that the rules are not effective. We note
     that Congress has evidenced interest in and relied on this
     employment trend data in the past. As noted above, Congress cited
     the Commission\'s employment trend reports in the legislative
     history of the 1992 Cable Act as evidence that barriers to
     employment of women and minorities continued to exist, and that
     additional legislative action was warranted.[^260] And Section
     22(g) of the 1992 Cable Act required the Commission to report back
     to Congress on the effectiveness of \[the Commission\'s\] EEO
     regulations and recommend whether further legislative action was
     needed.[^261] We do not believe that our obligation to monitor the
     effectiveness of our EEO regulations and procedures ended when we
     complied with that particular statutory requirement. We have a
     continuing responsibility to assess whether our policies are
     working, and we must collect the data necessary to fulfill that
     responsibility.[^262]

165. Under the annual employment report filing requirement that we
     reinstate today, broadcasters will be required to file Form 395-B
     by September 30 of each year. The Commission will use the data only
     in aggregated form for trend reports and to report to Congress. The
     Commission will not use the data for assessing an individual
     station\'s EEO compliance. In light of the purpose of the report,
     we amend Sections 73.3526(d)(7) and 73.3527(e)(7) of the
     Commission\'s Rules,[^263] so that broadcast stations will no
     longer be required to retain copies of Form 395-B in the station\'s
     public file.

166. Some commenters argue that stations with 100 or more employees are
     already required to file an \"Employer Information Report EEO-1\"
     (EEO-1) annually with the EEOC, and that there is no need for the
     Commission to duplicate these efforts.[^264] One commenter urges
     the Commission to permit broadcasters employing fewer than 100
     employees to voluntarily file an EEO-1.[^265] We will not adopt
     these proposals. Unlike the EEO-1, Form 395-B distinguishes between
     full and part-time employees and our broadcast trend reports only
     report full-time data. Therefore, even assuming that all stations
     that are part of an employment unit with five or more full-time
     employees filed the EEO-1, either voluntarily or because they were
     already required to do so, the data collected could not be compared
     to the employment data gathered for past Commission trend reports.
     OMB encourages us to "adopt procedures . . . that also could better
     utilize information collected via other mechanisms (such as other
     EEOC collections where possible)."[^266] For the reasons discussed,
     we do not find the EEOC's collection mechanism compatible with our
     information needs and we are aware of no other similar data
     collection mechanisms. OMB also urges that we explore the use of
     surveys and other statistical sampling mechanisms to monitor
     industry trends, instead of requiring annual reports.[^267] We have
     considered such alternatives. However, we use the data collected
     not only to monitor trends in the entire industry, but also to
     monitor trends in various subgroups, such as particular markets and
     services. These subgroups would likely be too small to generate
     useful results by surveys or sampling mechanisms. We note that we
     have provided relief to broadcasters in this area by, as discussed
     below, requiring broadcasters to file only one Form 395-B for all
     commonly owned stations in the same market that share at least one
     employee.

167. A few commenters criticize the process for obtaining employment
     data, and the classifications used for race and ethnicity
     classifications on Form 395-B.[^268] One commenter objects to the
     methods stated in the instructions for Form 395-B on how to obtain
     data on race and ethnicity, and states that the government should
     not require prospective employers to make visual determinations as
     to race and ethnicity.[^269] We disagree that the instructions on
     our annual employment reports require employers to guess race and
     ethnicity. It is only one suggested method for identification.
     Another suggested method is to obtain the information from
     employment records, where employees may have identified their race
     or ethnicity.

168. Another commenter complains that the Commission has had difficulty
     in defining the various racial and ethnic categories about which
     broadcasters must report.[^270] Specifically, a commenter argues
     that, in *1998 Biennial Regulatory Review \--* Streamlining *of
     Mass Media Rules, and Processes, Policies and Rules Regarding
     Minority and Female Ownership of Mass Media Facilities,* the
     Commission acknowledged that the racial and ethnic standards for
     \"minority\" need to be elaborated.[^271] The Commission is
     required to follow the standards issued by the OMB for classifying
     data on race and ethnicity.[^272] On October 30, 1997, OMB issued
     modified standards to be used by federal agencies in race and
     ethnic data collections.[^273] We will implement appropriate
     changes in Form 395-B, as well as Forms 395-A, and 395-M in the
     near future. For the time being, however, filers should continue to
     use the classifications defined in the current forms.

169. We maintain our current threshold for the filing of annual
     employment reports. Therefore, we will continue to require stations
     that are part of an employment unit with five or more full-time
     employees to file a Form 395-B. Thus, the smallest stations will
     continue to be exempt from this requirement.

170. As proposed in the *NPRM,*[^274] we will require licensees to file
     one 395-B for all commonly owned stations in the same market,
     including AM/FM combinations, that share at least one employee. We
     believe that this change will afford relief to broadcasters by
     enabling them to file only one Form 395-B for all commonly owned
     stations sharing at least one employee. Only one commenter
     addressed this issue, and expressed general support for this
     change.[^275] The *NPRM*[^276] also raised the possibility of
     requiring licensees to file one Form 395-B for all commonly owned
     stations in the same market even if they share no employees. No
     commenter addressed this issue and we find no basis for adopting
     such a requirement.

171. With respect to the reporting of part-time employees, we do not
     believe that the Communications Act permits us to eliminate the
     requirement that part-time employment data for television stations
     be reported on the Form 395-B.[^277] Because we want the
     requirements for radio and television stations to be as consistent
     as possible, we will continue this requirement for all
     broadcasters. In addition, for the reasons stated above in the
     broadcast recruitment section, we will continue to require the
     reporting of all full-time employees, including lower-level
     employees, on the Form 395-B.

172. The \"Broadcast Equal Employment Opportunity Program Report\"
     (Form 396) will be modified to reflect the new EEO Program
     requirements we adopt in this proceeding. With the revisions
     described below, we reinstate the requirement that licensees file a
     Form 396 with their renewal applications.[^278] The Form 396 will
     continue to be filed with the licensee\'s renewal application and
     licensees will be required to list the call sign and location of
     all commonly owned stations which share one or more employees on
     the same form. The form will also include a section for licensees
     to specify any stations operated pursuant to a time brokerage
     agreement. Recruitment efforts conducted for brokered stations
     should be reported as explained above. In addition, all stations,
     including those that are part of an employment unit with fewer than
     five full-time employees, will be required to report whether any
     employment discrimination complaints have been filed, and the
     current status of any such complaints.

173. The new Form 396 will continue to include a box in which a licensee
     may indicate whether it is part of an employment unit that employs
     fewer than five full-time employees. Such licensees would report
     the existence and details of any discrimination complaints,
     complete a certification, and file the form with the Commission.
     Given that our EEO Rule emphasizes broad and inclusive outreach and
     does not require recruitment methods that specifically target
     minority or female applicants, we do not find it necessary to grant
     a filing exemption based on the size of the available minority
     labor force. Therefore, we delete the box on Form 396 that
     permitted licensees located in areas with minority labor forces of
     less than five percent an exemption from filing EEO program
     information.[^279] Licensees of stations that are part of an
     employment unit with five or more full-time employees will be
     required to indicate on the Form 396 whether they have complied
     with the Commission\'s EEO Rule outreach requirements for the
     two-year period prior to the date they file for renewal. Form 396
     will also require information as to the licensee's election for the
     next two-year period between the two recruitment approaches. In
     addition, these licensees will be required to attach to Form 396
     the public file report from the previous year. As discussed above,
     the EEO public file report will contain information concerning all
     full-time vacancies during the covered period, all recruitment
     sources contacted and all other recruitment measures used, and
     additional information depending upon the recruitment option
     selected by the broadcaster. Generally, this approach is consistent
     with the proposals concerning reporting made by some
     commenters.[^280]

174. We have eliminated sections pertaining to local labor force
     statistics, and alternative labor force statistics, from Form 396
     because we will no longer compare broadcasters\' employment
     statistics with those labor force statistics. Also, to conform Form
     396 to our new EEO program requirements, we have deleted sections
     concerning the number of minority or female hires and the number of
     recruitment sources contacted, and the number of minorities and
     women who have been promoted. We expect licensees to demonstrate
     that their recruitment efforts resulted in broad and inclusive
     outreach. Thus, Form 396 will include a new section (Section III)
     for licensees to provide a narrative statement justifying why they
     believe their program has been successful in widely disseminating
     information concerning job openings throughout their community. For
     example, licensees could demonstrate the success of their outreach
     efforts by showing the circulation of any newspapers used to
     advertise vacancies and any additional recruitment sources used to
     reach sectors of the community that may not have been adequately
     reached by the newspaper advertisement or describing in detail the
     results of the menu options that they undertook, if applicable.
     Licensees will be required to explain on Form 396 any difficulties
     experienced concerning their outreach efforts and their efforts to
     overcome those problems.

175. MMTC recommends several changes to the Form 396.[^281]
     Specifically, MMTC suggests that: the form should request three
     years of data; headquarters data should be reported; the form
     should require licensees to identify a top management official
     responsible for EEO implementation; the terms applicant and
     interviewee should be carefully defined; recruitment data should be
     broken down by race, sex, and job category; referral sources should
     be identified by name, frequency, and intensity of use; licensees
     should be required to thoroughly describe word-of-mouth recruitment
     practices to avoid discrimination; EEO complaints should be
     reported on a current and complete basis with regular updates; and
     the form should call for information on training and internships,
     and minority and female contractors. In addition, MMTC recommends
     that the form ask for \"second generation\" information such as the
     treatment of minorities and women after they have been hired, and
     should also include a section for a self-assessment narrative. MMTC
     also recommends that the EEO Program Report ask whether the
     initiatives reported in the Program Report will be continued
     throughout the coming license term, or whether modifications or
     additions are contemplated. In addition, it also suggests that the
     EEO Program Report ask whether it is the station\'s policy to
     maintain contact with well qualified but unsuccessful applicants,
     and to stay in touch with minority and female former employees in
     order to engage them in the search for new employees. Finally, MMTC
     requests that the Form 396 ask licensees whether they have placed a
     binding arbitration agreement into effect, and should make clear
     that compulsory binding arbitration agreements violate the
     Commission\'s EEO policy.

176. The public file requirement and Statement of Compliance process we
     are adopting will provide more information that interested parties
     can use to monitor a broadcaster's compliance with our EEO
     requirements on a more frequent basis throughout the license term
     than was available under our former rule. We agree with MMTC that
     review of EEO compliance should not be limited to renewal time. We
     believe these new enforcement requirements will address several of
     MMTC's concerns and further the underlying goal of its proposed
     zero tolerance policy. We have nonetheless determined that
     broadcasters should have maximum flexibility in fashioning their
     EEO programs. Therefore, we will not ask them to provide details
     concerning the station\'s policy regarding contacts with
     unsuccessful applicants and whether the initiatives reported in the
     Program Report will be continued. Moreover, as we stated above,
     MMTC\'s proposal concerning compulsory binding arbitration
     agreements is beyond the scope of this proceeding. For the reasons
     stated above, we will not require licensees to report headquarters
     EEO program information in connection with renewal applications.
     While we have adopted several of MMTC's other suggestions
     concerning this form, we find that its remaining suggestions, such
     as requesting three years of data, would be too burdensome to
     require routinely of all broadcasters.

177. Each television and radio licensee that is part of an employment
     unit with five or more full-time employees will be required to file
     with the Commission a \"Statement of Compliance\" (Form 397), every
     second, fourth and sixth year of the license term. On Form 397,
     licensees will be required to answer with a \"yes\" or \"no\"
     response whether they have complied with the Commission\'s EEO Rule
     during the two years prior to the date they file Form 397. Stations
     answering \"no\" to this question will be required to submit an
     explanation with Form 397. Midway through the license term,
     television licensees and radio licensees that are part of an
     employment unit with more than ten full-time employees will be
     required to file, with Form 397, their station\'s EEO public file
     report for the previous year.

178. The Commission hereby reinstates the requirement that a
     construction permit, assignment, or transfer applicant that
     proposes to be part of an employment unit that will employ five or
     more full-time employees file a \"Model EEO Program\" (Form 396-A),
     as part of its construction permit, assignment, or transfer
     application.[^282] We have revised Form 396-A to conform with the
     EEO requirements that we adopt in this *Report and Order.* Among
     other things, the new Form 396-A will have revised instructions and
     questions in Section IV to clarify that recruitment measures should
     be broad and inclusive. In addition, to accord broadcasters
     flexibility in fashioning their EEO programs, the Form 396-A will
     no longer ask applicants to list certain categories of proposed
     recruitment sources in Section IV, but will instead allow
     applicants to propose the recruitment contacts that they believe
     will achieve wide dissemination and be productive in generating
     qualified applicants whenever vacancies occur. Applicants will also
     be required to identify in Section V of Form 396-A whether they
     elect to utilize the supplemental recruitment measures or to use
     the alternative recruitment program, in accordance with the
     discussion above.

     3\. [Cable EEO Program Requirements]{.underline}

     a\. [Rules and Policies for EEO Program]{.underline}

179. [Recruitment]{.underline}. In the *NPRM*, we noted that our cable
     EEO rules contain some of the same provisions that the court in
     *Lutheran Church* found unconstitutional and therefore proposed to
     modify these rules to avoid possible constitutional problems.[^283]
     Specifically, we proposed to eliminate provisions in the cable EEO
     rules which may pressure or otherwise encourage cable entities to
     hire or maintain a staff that reflects the composition of the local
     labor force. In addition, we proposed new cable EEO rules, which,
     like the broadcast EEO Rule that we adopt today, emphasize broad
     and inclusive recruitment outreach. We sought comment on whether to
     adopt specific recruitment requirements for cable entities or to
     afford cable entities flexibility in crafting their recruitment
     programs.

180. Commenters support our proposal to modify the cable EEO rules
     consistent with the court\'s decision in *Lutheran Church*.[^284]
     Accordingly, we modify our cable EEO rules as proposed in the
     *NPRM* to remove all requirements that cable entities compare their
     employment profile and employee turnover with the local labor
     force. In addition, the Commission will no longer compare
     individual cable units\' employment profiles with the local labor
     force, even as a screening device. We believe that these
     modifications will ensure that cable entities are not pressured or
     encouraged to adopt racial or other preferences in hiring.
     Consistent with these modifications, we also revise the annual
     employment reports (Forms 395-A and 395-M) and Supplemental
     Investigation Sheets (\"SIS\" or \"SIS form\") filed by cable
     employment units (defined in 47 C.F.R. § 76.71) as described below.

181. Regarding recruitment, commenters agree that broad and inclusive
     recruitment is necessary to ensure that all qualified applicants,
     including minorities and women, are informed of, and have an
     opportunity to compete on a level playing field for, job openings
     in the cable industry.[^285] Commenters generally favor a flexible
     approach to recruitment for cable entities over one mandating the
     use of a minimum number of minority and female recruitment sources,
     whether or not tied to the size of the local minority labor
     force.[^286] Commenters maintain that giving cable entities
     flexibility to fashion their own recruitment strategies will result
     in more individualized, and thus more effective, EEO
     programs.[^287] While most of the specific, comprehensive
     recruitment proposals offered by commenters were geared toward
     broadcasters, one commenter recommends offering both broadcasters
     and cable entities a \"menu\" of options for recruitment.[^288]
     Another commenter suggests conforming the cable EEO rules with the
     revised broadcast EEO Rule to the extent possible to eliminate
     confusion between the two sets of requirements.[^289]

182. For the reasons set forth above with respect to broadcasters, we
     believe that broad and inclusive recruitment by cable entities is
     essential to deter discrimination and foster diversity of
     programming. We also believe that our objective of ensuring that
     minority and female applicants have the opportunity to apply for
     positions in the cable industry, underlying the recruitment
     requirement set forth in Section 634(d)(2)(B), can be achieved
     without requiring recruitment methods that are specifically
     targeted to those groups.[^290] Broad outreach efforts should be
     effective to reach minorities and women, as well as other segments
     of the community that may previously have been deprived of the
     opportunity to compete for employment in the cable industry due to
     limited access to word-of-mouth recruitment networks. We conclude
     that adoption of a recruitment rule for cable entities similar to
     that adopted for broadcasters will afford cable entities
     flexibility to design outreach programs that best suit their
     individual circumstances and needs. We recognize, however, that
     some modifications to the rule are necessary to conform the rule to
     statutory requirements particular to cable. Accordingly, we adopt
     for cable entities a modified version of the broadcast recruitment
     rule, as described below. In addition, we revise the cable EEO
     rules, as well as the annual employment reports and SIS forms filed
     by cable employment units, to make it clear that cable entities are
     not required to target any particular recruitment sources. Cable
     entities are given wide discretion in designing their outreach
     programs provided they reach a broad cross-section of the
     community, including minorities and women, with information
     concerning job vacancies.

183. As in the case of broadcasters, we will afford cable entities the
     option of ensuring that their EEO programs are successful in
     achieving broad outreach through the use of one of two approaches:
     the use of the two supplemental recruitment measures as detailed in
     the discussion concerning the broadcast EEO Rule; or the use of the
     alternative recruitment program. The requirements we will apply to
     cable entities are similar to those applicable to broadcasters with
     one exception. Thus, while we are incorporating into our
     recruitment rule for cable entities a menu of options for
     supplemental recruitment measures similar to the menu we are
     adopting for broadcasters, which includes job fairs, intern
     programs, training programs, mentoring programs, and interaction
     with educational and community groups, instead of requiring cable
     employment units to implement four of these options every two years
     as with broadcasters, we will require cable employment units to
     implement two of these options each year. The two-year period for
     broadcasters coincides with the requirement to file the Statements
     of Compliance every two years. Cable employment units, on the other
     hand, are required by statute to file annual employment reports,
     which include a series of compliance questions. Rather than require
     cable employment units to file a separate Statement of Compliance
     every two years like broadcasters, we think it would be less
     burdensome to simply add a question regarding compliance with the
     new recruitment rule to the employment reports that cable
     employment units are required by statute to file annually. We
     modify the annual employment reports for cable employment units as
     described below to add this requirement. Since cable employment
     units will be certifying compliance with the recruitment
     requirements on an annual basis, we think it is appropriate to
     modify the required number of menu options to fit the shorter
     implementation period.

184. Initially, we will require that cable entities file with the
     Commission and place in their public file a statement as to their
     election between the two approaches (supplemental recruitment
     measures or alternative recruitment program) designed to ensure
     broad recruitment outreach within forty-five days of the effective
     date of the new rules. This will ensure that both the Commission
     and the public are aware of the approach the broadcaster intends to
     implement. In order to facilitate the initial election, we are
     preparing a form to be utilized for the initial election. Any cable
     entity that does not receive a copy of the form by mail may obtain
     one from the Commission. Thereafter, cable entities may change
     their election annually at the time of the filing of their annual
     program reports (FCC Form 395-A or FCC Form 395-M). We will amend
     those forms to provide for the election. We are permitting cable
     entities to modify their election annually (instead of every two
     years, as in the case of broadcasters) because, as noted, cable EEO
     compliance is administered on an annual basis as required by
     statute. Copies of the initial election statements will be on file
     in the Commission's Public Reference Room. In the future, we intend
     to make information regarding an entity's election electronically
     available on our web site.

185. Our recruitment rule for cable entities will apply to all full-time
     positions, both upper-level and lower-level. One commenter argues
     that any recruitment requirements for cable entities should be
     limited to upper-level positions that directly influence
     programming diversity because the court in *Lutheran Church*
     specifically found that the Commission has no evidence linking
     lower-level employees to programming diversity.[^291] This
     commenter acknowledges that the *Lutheran Church* decision did not
     directly address the cable EEO rules, but asserts that the court\'s
     analysis of programming diversity as a justification for the
     broadcast EEO Rule applies equally to the cable EEO rules.[^292]
     However, as discussed above, the Commission has express statutory
     authority under Section 634 of the Communications Act to adopt
     recruitment requirements and other EEO rules for cable entities.
     Moreover, Section 634(d)(2)(B) requires cable entities to recruit
     \"whenever jobs are available,\"[^293] and Section 634(d)(3)(A)
     requires cable entities with five or more full-time employees to
     report both upper-level and lower-level employees on their annual
     employment reports.[^294] The Commission, therefore, not only has
     statutory authority to apply recruitment requirements for cable
     entities to both upper-level and lower-level positions, but is
     required to do so.

186. For the reasons stated in our discussion of the broadcast
     recruitment requirements, we will apply the same policies on
     promotions, temporary employees, interns, part-time employees and
     former employees to cable entities as we are applying to
     broadcasters. Thus, we will not ordinarily require cable entities
     to recruit for internal promotions, temporary employees and
     interns. However, temporary employees and interns will be subject
     to recruitment requirements if they are later considered for
     permanent positions. With respect to part-time positions, we will
     include a provision in our cable rules clarifying that, in the case
     of part-time hires, cable entities need only substantially comply
     with the requirement to recruit for every vacancy. For example,
     cable entities choosing that approach will not be required to
     provide notification to requesting organizations for part-time
     vacancies. We will also expect cable entities to conduct
     recruitment for hires involving former employees.

187. [Analysis/Recordkeeping]{.underline}. In the *NPRM*, we proposed
     that cable entities retain certain records in order to meaningfully
     self-assess the effectiveness of their EEO programs and to prove
     that they have made good faith efforts to broaden their applicant
     pools for all vacancies. Among other things, we proposed to
     continue to require cable entities to maintain records as to the
     race, national origin and gender of all applicants generated by
     each recruitment source according to vacancy.[^295] We nevertheless
     requested comment on whether extensive applicant pool records were
     necessary. While NCTA and TCI support retention of the requirement
     that cable entities maintain extensive applicant pool data,[^296]
     other commenters complain that this recordkeeping requirement is
     time-consuming, burdensome and inherently unreliable because it
     relies primarily on voluntary self-identification by applicants of
     their race and national origin.[^297]

188. As we explained in our discussion of the recordkeeping requirements
     for broadcasters, our purpose in establishing any recordkeeping
     requirement for cable entities is primarily to ensure that cable
     entities engage in meaningful outreach and to provide a basis upon
     which they and the Commission can analyze their recruitment
     efforts. As in the case of broadcasters, we conclude that this goal
     can be achieved in many cases, without the necessity of maintaining
     applicant pool data. However, we will afford those cable entities
     that believe they can best ensure meaningful outreach through the
     use of the alternative recruitment program, rather than the use of
     the supplemental recruitment measures, the option to do so.

189. Accordingly, we will require that cable entities maintain the same
     records of their EEO recruitment efforts as broadcasters, which
     will differ in part based on whether the cable entity elects to
     employ supplemental recruitment measures or the alternative
     recruitment program.[^298] Thus, we will require cable entities to
     retain in their own records documentation necessary to verify that
     recruitment occurred for each vacancy, including a list of the
     vacancies filled during the pertinent review period, the
     recruitment sources contacted for each vacancy and other
     recruitment efforts undertaken. In addition, we will require that
     cable entities maintain records of the recruitment source of their
     hirees and interviewees (in the case of those cable entities that
     elect to utilize supplemental recruitment measures) or maintain
     applicant pool data (in the case of cable entities that choose the
     alternative recruitment program). We will expect cable entities to
     use these records as a starting point in analyzing the success of
     their recruitment efforts in achieving broad outreach to all
     segments of the community and, in the event of problems in that
     respect, to make modifications in their recruitment efforts, as
     warranted. Thus, the rules we are adopting require a cable entity
     to analyze the effectiveness of its outreach program, and address
     any problems found.

190. We will require that cable entities maintain these recruitment
     records for a minimum of seven years.[^299] As requested by one
     commenter,[^300] we clarify that cable entities may maintain
     records of their EEO efforts electronically, *e.g.*, by retaining
     electronic copies of e-mail notices of job openings to recruitment
     sources and scanning pertinent documents into a computer format.
     Permitting cable entities to maintain electronic records of their
     EEO efforts will reduce burdens on cable entities and will also
     reduce the likelihood that records could be lost, as computer
     records can be backed up. In this regard, we caution cable entities
     that, absent a showing of extraordinary circumstances, we will not
     credit claimed recruitment efforts that cannot be supported by
     records.

191. [Public File]{.underline}. As with broadcasters, we believe that it
     is important that local community residents have a role in
     monitoring cable entities\' compliance with our outreach
     requirements. In order to facilitate public participation in this
     process, we will require that each cable employment unit place in
     its public file annually, and post on its web site, if it has one,
     on the anniversary of the date that the employment unit\'s annual
     employment report is due to be filed, the following
     information: (1) a list of all full-time vacancies filled by the
     cable employment unit during the preceding year, identified by job
     title; (2) for each such vacancy, the recruitment source(s)
     utilized to fill the specific vacancy (including, in the case of
     cable entities utilizing the supplemental recruitment measures,
     organizations entitled to notification of vacancies, which should
     be separately identified), including the address, contact person,
     and telephone number of each source; and (3) a statement as to the
     cable entity's initial election between the two approaches
     (supplemental recruitment measures or alternative recruitment
     program) designed to ensure broad recruitment outreach and changes
     resulting from a substantial change of ownership (other changes in
     the entity's election will be in its annual employment reports,
     which already must be included in the public file). In addition,
     cable employment units which elect to utilize the supplemental
     recruitment measures will be required to include in their public
     file: (1) a list of the recruitment source that referred the hiree
     for each full-time vacancy; (2) data reflecting the total number of
     persons interviewed for full-time vacancies during the preceding
     year and, for each recruitment source utilized in connection with
     any such vacancies, the total number of interviewees referred by
     that source; and (3) a list and brief description of the menu
     options engaged in during the preceding year. Those cable
     employment units which do not elect to utilize the supplemental
     recruitment measures will be required to include in their public
     file data reflecting, for each recruitment source utilized for any
     full-time vacancy during the preceding year, the total number of
     applicants generated by that source, the number of those applicants
     who were female, and the number of those applicants who were
     minority, identified by the applicable racial and/or ethnic group
     with which each applicant is associated.

192. [Relief for Qualifying Units]{.underline}. We will also insert a
     provision for cable employment units with six to ten full-time
     employees, similar to the provision that we are adopting for
     broadcast stations that are part of an employment unit with five to
     ten full-time employees, because we agree with SCBA that small
     staff cable employment units have limited financial/administrative
     resources[^301] and that there should be regulatory parity, to the
     extent possible, between the broadcast and cable industries.[^302]
     The rule provision relating to qualifying cable employment units
     will state that they are required to choose only one option from
     the supplemental recruitment measures menu. Larger cable employment
     units will be required to choose two of these options. Qualifying
     cable employment units will be expected to meet all other EEO
     requirements, including, *e.g.*, filing Forms 395-A and 395-M, and
     maintaining a copy of their EEO public file report in their public
     file. We will continue our current policy of not requiring cable
     employment units with fewer than six full-time employees to
     demonstrate compliance with the EEO program requirements. We
     emphasize, however, that all cable entities, including those with
     fewer than six full-time employees, are subject to the provision of
     the EEO rules that prohibits discrimination. Further, although we
     are not requiring cable employment units with fewer than six
     full-time employees to comply with specific recordkeeping and
     reporting requirements, these units continue to be required to
     maintain an EEO program, pursuant to Section 634 of the
     Communications Act. In accordance with our prior practice, we will
     consider employees to be full-time if their regular work schedule
     is 30 hours per week or more.

193. [Other Matters Concerning Cable EEO Rules]{.underline}. In the
     *NPRM*, we proposed to require that a cable entity analyze its
     efforts to recruit, hire and promote in a nondiscriminatory fashion
     and address any difficulties in implementation of its EEO
     program.[^303] We suggested that such analysis include review of
     union agreements, seniority practices, productivity of recruiting
     sources, employee pay and benefits, utilization of media for
     recruitment purposes, and selection techniques or tests. Commenters
     who address the issue support adoption of this requirement for
     cable entities.[^304] We will adopt this requirement for the
     reasons set forth in the *NPRM*. Furthermore, because we have
     decided to ask for this information by means of a question in the
     SIS, as discussed below, we will not require that cable employment
     units submit a separate statement detailing their analysis every
     five years along with their SIS, as we suggested in the *NPRM*.

194. We proposed in the *NPRM* to retain the general EEO policy
     requirements for cable entities, which are outlined in Section
     76.73 of the Commission\'s Rules.[^305] We also proposed to retain
     the EEO program requirements for cable entities which are included
     in Sections 76.75(a), (d) and (e).[^306] No commenters addressed
     these proposals. Accordingly, we will retain these general EEO
     policy and program requirements for cable entities.

195. Finally, we will include in our cable EEO rules language clarifying
     that the provisions in those rules are not intended to require that
     any person be given preferential treatment based on race, color,
     national origin, religion, age, or gender.

196. [Enforcement]{.underline}. As required by 47 U.S.C. § 554(d)(3)(A),
     cable employment units with six or more full-time employees will be
     required to file annual employment reports with the Commission. The
     Commission will use the recruitment-related information provided in
     the Forms 395-A or 395-M, but not the employment profile, to
     determine annually whether units are in compliance with the EEO
     rules, as required by 47 U.S.C. § 554(e)(1).[^307] Data required to
     be included in the Forms 395-A and 395-M are described herein. We
     emphasize, however, that statistics provided about race, ethnicity,
     and gender of employees will not be used to determine compliance
     with EEO rules but will only be used to monitor industry trends and
     report to Congress. Systems found to be in compliance will receive
     a Certificate of Compliance. Systems found not to be in compliance
     will receive notice that they are not certified for a given year.

197. Normally, before notifying a unit that the Commission has found it
     noncompliant, the Commission will send an inquiry to the unit
     requesting information addressing the Commission\'s concerns. As
     part of an inquiry, the Commission may request information from the
     cable entity concerning its recruitment efforts. Also, annual
     employment reports should be based on recruitment efforts
     documented in items contained in a unit\'s own records.
     Consequently, a unit should retain any records necessary to
     document its recruitment efforts, including documentation of
     information provided in annual employment reports and supplemental
     investigation responses (described below), even though the records
     will not be required to be placed in the public file or filed with
     the Commission on a regular basis. These records could include
     copies of letters notifying sources of job openings, copies of the
     unit\'s job listings in newspapers or on web sites, and, if
     applicable, copies of requests from sources that they be notified
     of openings and copies of notices sent to them, information
     verifying participation at job fairs, and other similar types of
     outreach information. In addition, the Commission\'s cable EEO
     public file rules, 47 C.F.R. §§ 76.79 and 76.1702, will be amended
     to require units, by the same date they are due to file their
     annual employment reports, to place in their public file a record
     of the items listed above.

198. As provided in 47 U.S.C. § 554(f), a cable entity may be found to
     have committed a \"substantial failure to comply\" with the
     requirements of the Communications Act if a unit is found to have
     three or more failures in compliance in a seven-year period. Thus,
     units will be required to retain for a minimum of seven years any
     records necessary to document their recruitment efforts.

199. As noted above, we are required by statute to certify annually
     whether units are in compliance with our EEO rules. Thus, in order
     to verify compliance with the EEO rules and the accuracy of the
     recruitment-related information in Forms 395-A or 395-M, the
     Commission may send inquiries to cable entities, as mentioned
     above. The Commission may at random conduct an inquiry of a unit
     requesting information relating to the unit\'s compliance with the
     EEO rules. We may also conduct an inquiry if the Commission has
     evidence of a possible violation of the EEO rules. Initially, the
     inquiry may request documentation of recruitment-related
     information reported in the Forms 395-A or 395-M. Further inquiry
     or inquiries may be conducted requesting additional retained
     recruitment effort documentation that is not reported in the forms,
     such as the information required to be included in a unit\'s public
     file and other data.

200. In addition to annual certifications, the Commission will
     investigate each cable and MVPD unit at least once every five
     years, as required by 47 U.S.C. § 554(e)(2). Units will be required
     to submit supplemental investigation information, as requested in
     the SIS form, with their regular 395-A or 395-M reports in the
     years they are investigated.[^308] The requirements of the SIS form
     are described below. Supplemental investigation responses will be
     filed with annual employment reports when due, and thus will be
     required to be included in a unit\'s public file.

201. Most commenters support the continued use of such tools as the
     annual certifications and the supplemental investigations, as
     proposed herein.[^309] TCI states that annual certifications,
     periodic inquiries, supplemental investigations every five years,
     and the possibility of a forfeiture for violations provide
     incentives to cable entities to evaluate their own programs
     annually, provides incentives for repeat violators to comply with
     rules, and serves as a deterrent to others.[^310] We agree. Some
     commenters also suggest that the Commission base its evaluations of
     units\' EEO programs on efforts and not on results and that the
     Commission not use labor force comparisons.[^311] We adopt these
     suggestions, as discussed above. The public may file complaints
     concerning the EEO programs of units, which might be based on
     annual employment reports, supplemental investigation information,
     or the contents of a unit\'s public file. Cable entities found to
     be in violation of the EEO rules may be subject to sanctions and
     remedies including noncertification, admonishment, reporting
     conditions, and forfeitures. The appropriate sanction or remedy
     will be determined on a case-by-case basis.

     b\. [Forms]{.underline}

202. Pursuant to statute, the Commission requires cable employment units
     with six or more full-time employees to file an employment report
     (Form 395-A) annually, which calls for responses to questions about
     the entity\'s EEO efforts as well as employment, hiring, and
     promotion data.[^312] The information requested on Forms 395-A and
     395-M, including a series of compliance questions, is required by
     statute.[^313] Specifically, the current forms require cable
     employment units to provide employment data for all employees, as
     well as information on employee promotions and job hires. In
     addition, cable employment units must provide a \"yes\" or \"no\"
     response to a series of compliance questions. In the *NPRM,* we
     proposed to modify our cable forms to the extent necessary to avoid
     constitutional problems. As stated previously, we believe that
     broad rulemaking authority granted to us in Section 634 of the
     Communications Act permits us to change both the cable EEO rules
     and the cable EEO forms to advance the congressional goals
     identified in the statute, as well as to avoid constitutional
     problems.

203. After consideration of the comments on this issue, we have
     concluded that we should continue to require cable employment units
     with six or more full-time employees to provide annual employment
     profile data on all positions in order to continue our monitoring
     of industry trends and to report to Congress.[^314] Thus, these
     cable employment units will be required to submit to the Commission
     annual employment profile data for all jobs on Forms 395-A and
     395-M. However, these employee statistics will not be used to
     assess EEO compliance but will be used solely for the preparation
     of trend reports and to report to Congress. Further, we will
     continue to require cable entities, consistent with 47 U.S.C. §
     554(d)(3)(B), to keep copies of Form 395-A and 395-M available for
     public inspection.

204. We have determined, however, that it is appropriate to eliminate or
     revise certain questions on Forms 395-A and 395-M in Section III.
     Specifically, we will eliminate question three because we conclude
     that it is not \"possible\"[^315] for us to require cable entities
     to enforce an obligation that a court has found infringes
     constitutional rights.[^316] For the same reason, we eliminate all
     form sections concerning available labor force and occupational
     availability data, employee promotions, and job hires. Therefore,
     we have eliminated Sections V.B., V.C., and VI of Forms 395-A and
     395-M. We also eliminate employee promotion and job hires data in
     Section VII.

205. We also believe that it is appropriate to amend the questions on
     Forms 395-A and 395-M to reflect our new EEO program requirements.
     Thus, former question one (now question two) will be revised to
     require cable entities to answer whether they have \"widely\"
     disseminated their EEO programs.[^317] In addition, we amend the
     instructions to former question two (now question three) to clarify
     that we require that a unit engage in broad and inclusive
     outreach.[^318] Question four will be changed to emphasize that
     promotions are to be offered to all persons in a nondiscriminatory
     manner.[^319] Question five will be revised to make clear that any
     such efforts should be broad so as to include all segments of the
     community, and that no entity should be excluded on the basis of
     race, ethnicity or gender.[^320] Further, question five will be
     amended to emphasize that efforts to seek out entrepreneurs shall
     be conducted in a nondiscriminatory manner. We also revise question
     six to ask whether cable employment units have analyzed the results
     of their EEO efforts in a nondiscriminatory manner.[^321] The new
     Forms 395-A and 395-M will have a new question (question one,
     Section III) which will require cable employment units to answer
     whether they have complied with the outreach provisions in
     accordance with Section 76.75(b) or (f), as applicable, of the
     Commission\'s Rules. We believe that the rulemaking authority
     granted to us by Section 634, as discussed above, affords us
     sufficient latitude to make these changes. We will continue our
     current exemption for cable employment units with fewer than six
     full-time employees from filing employment and compliance data on
     the 395-A, 395-M, and SIS forms.

206. Cable employment units are subject to a more thorough review every
     five years with the SIS form, pursuant to statute.[^322] The SIS
     requests information regarding specific recruitment efforts and job
     categories. The questions on the SIS reflect the compliance
     questions on the Forms 395-A and 395-M, but ask for narrative
     responses, instead of \"yes\" or \"no\" answers. Thus, consistent
     with the changes we stated above, we conclude that we may eliminate
     and revise the corresponding questions in Part 2 of the SIS.
     Specifically, we will delete question three from the SIS.[^323] We
     also believe that it is appropriate to change former question one
     (now question two) to ask cable entities to describe their efforts
     to widely disseminate their EEO programs.[^324] Also, we clarify
     that former question two (now question three) contemplates broad,
     inclusive outreach.[^325] In addition, similar to the revisions to
     questions four, five, and six on Forms 395-A and 395-M, we amend
     questions four, five, and six on the SIS to clarify that we intend
     for such efforts to be conducted in a nondiscriminatory
     manner.[^326] The SIS will also have a new question (question one)
     which will require cable employment units to describe their efforts
     to comply with the outreach provisions of Section 76.75(b) or (f),
     as applicable, of the Commission\'s Rules. Finally, the SIS will
     require the submission of the information placed in the entity's
     public file for the preceding year.

207. Part I of the SIS requires cable employment units to provide brief
     descriptions of specified job categories.[^327] We will change this
     section to remove the requirement that cable entities provide a
     breakdown of employees by gender and race, and job descriptions for
     minorities and females. The *NPRM* proposed to require cable
     entities to submit a statement detailing an analysis of their EEO
     programs for the preceding 12 months, and ask questions concerning
     what training or internship programs for minorities and/or women
     they have implemented on their Form 395-A or 395-M Supplemental
     Investigation Sheet. Upon further reflection, we have decided not
     to require cable employment units to file such statements. We
     believe that the information that cable entities are to submit to
     the Commission on Forms 395-A, 395-M, and the SIS will be
     sufficient to allow us to assess their EEO outreach efforts. Also,
     cable employment units which elect to employ the supplemental
     recruitment measures will not be required to submit information
     concerning the total number of applicants received from each listed
     source, or the total number of minority and female applicants
     received. We will, however, continue to require cable entities to
     report part-time, as well as full-time, employees on Forms 395-A
     and 395-M, as required by statute.[^328]

208. Commenters favor the process currently used by the Commission, with
     an annual submission of Form 395-A or 395-M, and an SIS filed once
     every five years.[^329] These commenters support the form changes
     proposed in the *NPRM* and state that the Commission should revise
     Form 395-A to reflect the Commission\'s cable EEO rule
     modifications. These commenters are opposed, however, to a revision
     to the forms that would request information concerning the total
     number of applicants received from each listed source or the total
     number of minority applicants received. As stated earlier, we do
     not believe that maintaining or reporting to the Commission
     applicant pool data is necessary if entities elect to employ the
     specific supplemental recruitment measures which we believe ensure
     the success of their outreach. Therefore, we will not require that
     cable entities that elect to employ the supplemental recruitment
     measures report such data in their cable EEO forms. However, such
     entities will be required to submit with their SIS response data
     concerning the recruitment source of hirees and interviewees for
     the preceding year that is required to be placed in the public
     file. Also, entities that elect not to employ the supplemental
     recruitment measures will be expected to submit with their SIS
     response data concerning applicant pools for the preceding year
     that is required to be placed in the public file.

209. One commenter urges the Commission to permit cable entities to file
     a \"Common Carrier Annual Employment Report\" (FCC Form 395) or an
     EEO-1 in place of Form 395-A.[^330] We will not adopt this
     proposal. Forms 395-A and 395-M collect job title information
     within 15 job categories and employment data for six upper-level
     job sub-categories, which are required by statute.[^331] Neither
     the Form 395 nor the EEO-1 call for this information.

**C. [Constitutional Issues]{.underline}**

210. In the *NPRM*, we sought comment on our view that the EEO outreach
     and reporting requirements proposed in the *NPRM* would be
     constitutional under the *Lutheran Church* decision and other
     precedent.[^332] We reasoned that EEO requirements designed simply
     to ensure that minority and female job candidates, as well as the
     community at large, are informed of job openings and encouraged to
     apply do not raise equal protection concerns as long as they are
     inclusive, assuring that all job candidates have access to
     information about job openings without regard to their race or
     gender; impose no greater burdens on non-minority broadcasters or
     cable entities than minority broadcasters or cable entities; and do
     not require, pressure, or encourage employers to adopt racial
     preferences.[^333]

211. Several cable entities and other organizations commenting on the
     proposals concur with our view that they do not raise equal
     protection concerns. They state that the proposed outreach rule
     would require no more than inclusive outreach efforts to all
     sectors of the labor force, and would not in any way pressure or
     encourage employers to prefer minorities or women in hiring.
     Therefore, they contend, the proposed rule would not infringe
     rights protected by the Equal Protection Clause and would not be
     subject to heightened scrutiny.[^334] They note that the proposed
     rule lacks the feature that caused its predecessor to be subjected
     to strict scrutiny. Under the new rule, broadcasters and cable
     entities would not be required to compare the racial composition of
     their employment profile with the racial composition of the labor
     force in their communities, and the Commission would not make that
     comparison in processing renewal applications.[^335] Thus, the new
     rules would not indirectly pressure employers to make race-based
     hiring decisions contrary to the *Lutheran Church* decision. In
     addition, under the new rule, employers would gain no procedural
     advantage by bringing their levels of women and minority employees
     up to certain levels.[^336] Accordingly, these commenters argue
     that the new rule could not be viewed as pressuring employers to
     hire minorities or women.[^337] Further, these parties find nothing
     objectionable in the compilation or reporting of information
     concerning the race, ethnicity or gender of an employer's staff to
     enable the Commission to monitor industry trends and report to
     Congress.[^338]

212. In contrast, broadcast industry commenters and several other
     organizations point to a number of aspects of the proposed
     recruitment requirements that they claim will be subject to strict
     scrutiny.[^339] First, some of the commenters claim that the
     proposed requirement that broadcasters and cable entities use
     minority and female specific recruitment sources, as well as
     general recruitment sources, utilizes a "racial classification" and
     is therefore subject to strict scrutiny under *Adarand* \--
     regardless of whether it adversely affects any person.[^340] One
     commenter claims that "by encouraging the recruitment of specific
     classifications of applicants, the Commission implicitly would be
     encouraging preferential hiring of those groups."[^341]

213. Second, some commenters argue that the proposed requirement that
     broadcasters and cable entities monitor the productivity of their
     chosen recruitment sources by maintaining records of the race,
     ethnicity, and gender of applicants generated by each source, and
     change recruiting sources that prove unproductive, would be subject
     to strict scrutiny.[^342] Forty-six Named StBAs, for example,
     assert that this requirement would require race-based
     decision-making and would pressure stations to make hiring
     decisions on the basis of race.[^343] NAB similarly finds the
     proposed requirement for stations to assess the productivity of
     their recruitment sources to "instill improper pressures," though
     it does not specify what stations will be "pressured" to do that is
     "improper."[^344] Institute complains that the applicant monitoring
     requirement replaces "an unconstitutional system of proportional
     hiring with an equally flawed system of proportional
     recruiting."[^345] It charges that the "true aim" of the policy is
     to ensure "proportional numbers of minorities are in the applicant
     pool rather than assuring that job vacancies are advertised in a
     nondiscriminatory manner."[^346]

214. Third, some commenters assert that reinstatement of the requirement
     that broadcasters file the annual employment report on Form 395-B
     "threatens to improperly force stations to consider race or gender
     when hiring."[^347] For example, while acknowledging that the
     Commission stated that it will use the data submitted in these
     reports only to monitor industry trends, NAB "opposes reinstatement
     of this reporting requirement because the Commission has not
     guaranteed that the Commission or others will not use the collected
     information against an individual broadcaster in case the 'numbers'
     look low."[^348]

215. Fourth, a few commenters assert that proposed regulations requiring
     that broadcasters and cable entities exercise care to ensure that
     their selection techniques and tests, seniority practices,
     promotional practices, fringe benefit policies and dealings with
     labor unions do not have the effect of discriminating against
     qualified minorities or women raise equal protection concerns. They
     argue that these provisions are subject to strict scrutiny because
     they increase stations' and cable entities' race consciousness and
     pressure them to make race-conscious employment decisions.[^349]
     Regarding the proposed requirement that employers refrain from
     discriminating in making hiring and promotion decisions, one
     commenter asserts that the "FCC makes plain that stations are
     expected to recruit, hire, and promote minorities and women, even
     if they do not have the qualifications or pass the tests required
     of other personnel."[^350]

216. Finally, the commenters who claim that our proposed rules would be
     subject to strict scrutiny under the Equal Protection Clause
     generally also assert that they are unlikely to withstand such
     scrutiny because they are not narrowly tailored to serve a
     compelling governmental interest.[^351]

217. Since the new EEO program requirements we adopt today impose
     several distinct obligations, we will address the constitutionality
     of each. The basic recruitment obligation we impose gives
     broadcasters and cable entities discretion to recruit from whatever
     sources they choose as long as they widely disseminate information
     concerning job vacancies so that all qualified persons, including
     minorities and women, have an equal opportunity to apply for the
     position. Thus, this basic recruitment obligation requires fair and
     active outreach to all qualified persons, as many commenters
     advocate.[^352] The courts have consistently held that recruitment
     measures that are designed to *expand* the applicant pool, and that
     do not favor anyone *in* the applicant pool on the basis of race,
     are race-neutral and are not subject to strict scrutiny.[^353] No
     commenter has cited any case, and we are not aware of any case,
     that has ever held inclusive outreach requirements to be
     constitutionally suspect, much less unconstitutional. Indeed, the
     court in *Lutheran Church* held that "\[i\]f the regulations merely
     required stations to implement racially neutral recruiting and
     hiring programs, the equal protection guarantee would not be
     implicated."[^354] The basic outreach requirement we adopt today
     does just that, and thus raises no equal protection concerns.

218. While we have decided, for policy reasons, not to require
     broadcasters to use recruitment sources specifically targeting
     minority and female job applicants, we disagree with those
     commenters who argue that a targeted recruitment requirement would
     be constitutionally suspect. As long as recruitment requirements
     are inclusive and do not afford any group superior access to
     information about job vacancies or pressure employers to make
     employment decisions on the basis of race or gender, we do not
     believe that they would raise constitutional concerns.[^355]
     Nevertheless, we have decided, as discussed above, to afford
     broadcasters considerable discretion in selecting the recruitment
     sources that will disseminate vacancy information most effectively
     to everyone in their communities, including minorities and women,
     rather than dictating the number or type of sources that all
     broadcasters must use. Thus, the constitutional objections raised
     by some commenters to targeted recruitment requirements are moot at
     the present time. As discussed above, we intend to monitor the
     effectiveness of the new rules to determine if different
     requirements are in order.

219. In addition to the wide dissemination requirement, broadcasters and
     cable entities will be required to undertake two kinds of
     supplemental recruitment measures: (1) sending notices of job
     vacancies to any recruitment organization that requests such
     notice, and (2) conducting supplemental recruitment initiatives
     selected from a menu of options, such as periodic participation in
     job fairs and internship programs. Under the first supplemental
     requirement, any national or local community organization that
     distributes information about employment opportunities to job
     seekers or refers job seekers to employers will be entitled to
     request notice of openings without regard to the organization's
     affiliation with members of any racial, ethnic, or gender group.
     Thus, this requirement will not favor any group based on a suspect
     classification, and will not require employers to take any action
     based on a suspect classification. It will simply ensure that if,
     despite the employer's good faith efforts to widely disseminate
     information concerning job vacancies, any group believes its
     constituents are not adequately being reached or simply wants to
     assist in disseminating the information, it can do so. Similarly,
     the supplemental measures selected from the menu do not require
     employers to take any action based on race, ethnicity or gender,
     and do not favor or disadvantage any job applicant based on his or
     her race, ethnicity or gender. They are simply designed to
     supplement employers' vacancy-specific recruitment actions with
     longer term recruitment and training activities that will raise the
     level of community awareness of opportunities in the broadcasting
     and cable industries and develop a talent pool for companies to
     draw from as future vacancies occur.

220. Further, the records that broadcasters and cable entities will be
     required to keep, place in their public files, or file with the
     Commission to document compliance with their basic and supplemental
     recruitment obligations are race neutral. They are designed to
     provide a means to verify that broadcasters and cable entities have
     widely disseminated information concerning their vacancies and
     notified requesting organizations before filling those vacancies.
     The information is also designed to verify that broadcasters and
     cable entities have considered in good faith the applicants who
     respond to their outreach efforts. Thus, the requirements of the
     rules that broadcasters and cable entities recruit for all
     vacancies encompasses an obligation to consider the applications
     received as part of the hiring process.

221. Many broadcasters and cable entities who filed comments in this
     proceeding have asked for complete discretion regarding how to
     conduct their outreach programs to suit their own needs and
     communities. We have decided to give them the option of designing
     their own outreach programs, subject only to the requirements that
     they widely disseminate information concerning job openings (which
     they can do through any channels they desire) and monitor the
     composition of their applicant pools so that they can determine
     whether their outreach efforts have in fact been successful in
     permeating their community. Several commenters argue that requiring
     employers to maintain records of the race, ethnicity and gender of
     job applicants generated by their recruitment sources and change
     sources if their recruitment sources prove unproductive or their
     efforts fail to reach the entire community would be
     constitutionally suspect. They claim that such requirements would
     pressure stations to make hiring decisions on the basis of race or
     otherwise "instill improper pressures."[^356] Forty-six Named StBAs
     assert that analyzing the representativeness of applicant pools
     "will effectively create a quota system for hiring."[^357] None of
     these commenters explains, however, how monitoring the race,
     ethnicity or gender of applicants will pressure employers to prefer
     anyone who applies for a job on the basis of race or gender or take
     any other action that could be prejudicial to any job applicant,
     and we do not believe it will. Indeed, in enforcing the recruitment
     requirements, the Commission will not even know the race, ethnicity
     or gender of the persons hired from the applicant pools. Thus, the
     regulatory scheme will not pressure employers to favor any
     applicant on the basis of his or her race, ethnicity or gender
     because granting a preference based on those factors will not
     improve the employer's posture under that scheme or make its EEO
     practices less likely to be scrutinized by the agency.

222. Nor is there any merit in the argument that we are instituting an
     unconstitutional system of "proportional recruiting."[^358] The
     sole purpose of the applicant pool data is to assist employers and
     the agency in evaluating whether employer outreach efforts are
     inclusive. We have made it clear that there is no requirement of
     applicant pool "proportionality" to the composition of the local
     work force, nor could there be, since employers cannot control who
     applies for a position. Nevertheless, we believe that monitoring
     the composition of its applicant pools will give an employer some
     useful information about whether its outreach efforts are missing a
     significant sector of the community, such that it should modify its
     recruitment measures to be more inclusive. For example, if an
     employer's outreach efforts fail to attract any Hispanic applicants
     in a metropolitan area with a large Hispanic population, it may
     decide that the recruitment sources it is using are not
     disseminating its job advertisements as widely as it thought, and
     it should take action to rectify the situation. Such action might
     consist, for example, in advertising its openings in a newspaper of
     wider circulation or perhaps in a Spanish-language newspaper. We do
     not see how any job applicant would be prejudiced by either the
     collection of the information or the subsequent broadening of
     outreach efforts. As the court observed in *Shuford*,[^359] no job
     applicant can rightly complain about being forced to compete with a
     larger field of qualified candidates.

223. The cable entities who support the collection of data concerning
     the race and gender of applicants recognize that there is a
     difference between reaching out widely in recruiting and making
     discriminatory hiring decisions.[^360] Our new rule requires broad
     outreach, and we believe that employers trying to reach out in good
     faith to all parts of their communities may find it helpful to
     collect data to monitor the effectiveness of their efforts. But the
     collection of statistics to test whether broad outreach has been
     effective in no way requires or fosters hiring discrimination,
     which is unlawful under the Commission's rules and Title VII.[^361]

224. In addition, we 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 the basic and supplemental recruitment requirements
     fashioned by the Commission, none of which require 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.

225. We also do not believe that there is any substance to the argument
     that reinstatement of the Form 395-B filing requirement implicates
     equal protection concerns because it will force or pressure
     broadcasters to consider race, ethnicity or gender in making hiring
     decisions. We stated in the *NPRM* and repeat in this *Report and
     Order* that we will require the filing of that data only for the
     purposes of monitoring industry trends and reporting to Congress.
     We also state in the clearest possible terms that we will *not* use
     the data to assess broadcasters' or cable entities' compliance with
     our EEO rules.

226. Thus, contrary to NAB's contention, we *have* guaranteed that we
     will not use the Form 395-B information against any broadcaster in
     enforcing our EEO rules. Moreover, having stated that we will not
     use the employment profile data collected on Form 395 to assess
     compliance with our EEO rules, we will be legally foreclosed from
     doing so.[^362] Therefore, no broadcaster or cable entity has
     reasonable cause for concern that the Form 395 employment profile
     data will be used against it in FCC enforcement actions. The fact
     that a few commenters suggest, without any factual foundation, that
     an agency has a concealed motive, cannot thereby deprive the agency
     of authority to adopt requirements that are clearly within its
     statutory authority. Of course, we cannot guarantee that no third
     party will file a petition against a broadcaster based on the Form
     395-B employment profile data \-- or some other equally inadequate
     basis, for that matter. But we will dismiss any such petition
     summarily.

227. Finally, a few commenters complain that even those provisions of
     the Commission's proposed rules that would merely require
     broadcasters and cable entities to take steps to assure that their
     policies and procedures for hiring and promoting employees do not
     discriminate against any person on the basis of race, ethnicity, or
     gender are constitutionally suspect because they "would
     collectively add to the pressure on stations to take race-based
     employment actions ...."[^363] These commenters appear to be
     arguing that even a race-neutral measure that is designed to
     *prevent racial discrimination* is subject to strict scrutiny
     because it is "race conscious."[^364] Under this reasoning, Title
     VII and all other laws banning discrimination would be subject to
     strict scrutiny. The only authority cited for this novel
     proposition is *Lutheran Church,* but nothing in that decision
     supports it. As noted above, the court stated in *Lutheran Church*
     that race-neutral outreach or nondiscrimination requirements would
     raise no constitutional concerns.[^365] We do not believe that
     rules requiring only nondiscriminatory employment decisions could
     reasonably be viewed as pressuring employers to "take race-based
     employment actions .... "[^366] Indeed, the Supreme Court plurality
     explained in *City of Richmond v. J.A. Croson,*[^367] that a
     government entity is free to employ a "whole array of race-neutral
     devices" to ensure that individuals or businesses provide equal
     opportunities to minorities and do not discriminate against them:

> Many of the formal barriers to new entrants ... may have a
> disproportionate effect on the opportunities open to new minority
> firms. Their elimination or modification would have little detrimental
> effect on the city's interests and would serve to increase the
> opportunities available to minority business without classifying
> individuals on the basis of race. The city may also act to prohibit
> discrimination in the provision of credit or bonding by local
> suppliers and banks. *Business as usual should not mean business
> pursuant to the unthinking exclusion of certain members of our society
> from its rewards*.[^368]

228. Thus, we are confident that we can take steps to ensure that
     minorities and women are not either intentionally or "unthinkingly"
     denied an equal opportunity to compete for jobs in the broadcast
     and cable industries without treading on rights guaranteed by the
     Equal Protection Clause. Indeed, nondiscrimination and inclusive
     outreach requirements like those we adopt today advance the
     principle that is at the heart of the Equal Protection Clause:
     equal protection of the laws and equal opportunity for all
     citizens, regardless of race or gender. It turns equal protection
     analysis on its head to suggest that they are suspect under it.

     **V. CONCLUSION**

229. In this *Report and Order*, we establish a new broadcast EEO Rule
     and policies and amend our cable EEO rules and policies. We believe
     that the rules and policies adopted herein are consistent with the
     court\'s decision in *Lutheran Church*, while at the same time
     ensuring equal employment opportunity in the broadcast and cable
     industries through vigorous outreach and prevention of
     discrimination. We acknowledge that some commenters urged us to
     adopt remedial rules, or, alternatively, initiate a national
     employment disparity study, pursuant to *City of Richmond v.
     Croson* and *Adarand Constructors v. Pena*, to gather a record
     sufficient to sustain a remedial approach. We will not pursue
     either of these alternatives at this time, but will keep MM Docket
     No. 98-204 open to allow any interested party to submit whatever
     information it deems germane to these issues and proposals. We will
     consider any submissions and determine what, if any, action is
     appropriate at a later date.

     **VI.** **PROCEDURAL MATTERS AND ORDERING CLAUSES**

230. *Final Regulatory Flexibility Analysis*. As required by the
     Regulatory Flexibility Act (\"RFA\"), 5 U.S.C. § 603, an Initial
     Regulatory Flexibility Analysis (\"IRFA\") was incorporated in the
     *NPRM*. The Commission sought written public comments on the
     possible significant economic impact of the proposed policies and
     rules on small entities in the *NPRM*, including comments on the
     IRFA. Pursuant to the Regulatory Flexibility Act, 5 U.S.C. § 604, a
     Final Regulatory Flexibility Analysis (\"FRFA\") is contained in
     Appendix B.

231. *Paperwork Reduction Act of 1995 Analysis*. The actions herein have
     been analyzed with respect to the Paperwork Reduction Act of 1995
     and found to impose new or modified reporting and recordkeeping
     requirements or burdens on the public. Implementation of these new
     or modified reporting and recordkeeping requirements will be
     subject to, and become effective upon, approval by the Office of
     Management and Budget as prescribed by the Act. One commenter
     submits that the FCC\'s proposed collection of information from
     broadcasters and cable entities is not necessary for the legitimate
     functions of the Commission, that it therefore does not have
     practical utility, and that the administrative burden should be
     reduced by not collecting it.[^369] We disagree. As stated in the
     *NPRM*, the court in *Lutheran Church* did not abrogate the
     Commission\'s authority to require broadcasters and cable entities
     to file employment data in order to enable the Commission to
     analyze industry trends or prepare annual trend reports.[^370]
     Furthermore, statutory provisions require the Commission to collect
     employment data for television and cable industries.[^371] As we
     further stated in the *NPRM* and this *Report and Order*, knowledge
     of industry trends enables the Commission to monitor the
     effectiveness of, and need for, EEO rules and make appropriate
     recommendations to Congress for legislative change.

232. Accordingly, IT IS ORDERED that, pursuant to the authority
     contained in Sections 1, 4(i), 4(k), 257, 301, 303(r), 307, 308(b),
     309, 334, 403, and 634 of the Communications Act of 1934, as
     amended, 47 U.S.C. §§ 151, 154(i), 154(k), 257, 301, 303(r), 307,
     308(b), 309, 334, 403, and 554, this *Report and Order* IS ADOPTED,
     and Part 0, Part 73 and Part 76 of the Commission\'s Rules ARE
     AMENDED as set forth in attached Appendix C. It is our intention in
     adopting these rule changes that, if any provision of the rules, or
     the application thereof to any person or circumstance, are held to
     be unlawful, the remaining portions of the rules not deemed
     unlawful, and the application of such rules to other persons or
     circumstances, shall remain in effect to the fullest extent
     permitted by law.

233. IT IS FURTHER ORDERED that the Petition for Reconsideration filed
     by the American Center for Law and Justice IS DISMISSED.

234. IT IS FURTHER ORDERED that the late-filed comments and reply
     comments in this proceeding are considered as part of the record in
     this proceeding.

235. IT IS FURTHER ORDERED that, pursuant to the Contract with America
     Advancement Act of 1996, the rule amendments set forth in Appendix
     C WILL BECOME EFFECTIVE either 60 days after their publication in
     the Federal Register 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, and the information
     collection contained in these rules will become effective 60 days
     after publication in the Federal Register, following OMB approval,
     unless a notice is published in the Federal Register stating
     otherwise.

236. IT IS FURTHER ORDERED that the Commission\'s Consumer Information
     Bureau, Reference Information Center, SHALL SEND a copy of this
     *Report and Order*, including the Final Regulatory Flexibility
     Analysis, to the Chief Counsel for Advocacy of the Small Business
     Administration.

237. IT IS FURTHER ORDERED that MM Docket No. 96-16 is terminated.

238. IT IS FURTHER ORDERED that the present phase of MM Docket No.
     98-204 is terminated. However, MM Docket No. 98-204 will remain
     open for the limited purpose described in paragraph 229 and to
     facilitate any additional proceedings upon further order of the
     Commission. This action does not affect the effective date of the
     EEO Rules adopted herein.

FEDERAL COMMUNICATIONS COMMISSION

Magalie Roman Salas

Secretary

**APPENDIX A**

######### 

######### LIST OF COMMENTING PARTIES

[Comments]{.underline}

1\. American Center for Law and Justice (ACLJ)

2\. American Federation of Television and Radio Artists (AFTRA)

3\. American Women in Radio and Television (AWRT)

4\. Ameritech New Media, Inc. (Ameritech)

5\. Association of America's Public Television Stations (APTS)

6\. Camrory Broadcasting, Inc.; Chambers Communications Corp.;

James Chladek; Continental Broadcasting, Inc.; Palm Beach

Radio Broadcasting, Inc.; Prime Time Christian Broadcasting,

Inc.; Radio 95, Inc.; and Shockley Communications Corporation (Camrory)

7.  Christian Legal Society's Center for Law and Religious Freedom;
    Concerned Women for America;

> and Focus On the Family (CLS)

8\. Church State Council of Seventh Day Adventists (Adventists)

9\. Roger Clegg (Roger Clegg)

10\. Cole, Raywid & Braverman (CRB)

11\. Crawford Broadcasting Company (CBC)

12\. Curators of the University of Missouri (Curators)

13. Delta Radio, Inc.; United Communications Corporation; Main

> Street Broadcasting Company, Inc.; Brooks Broadcasting, LLC; KMRI
> Radio, LLC; Pollack Broadcasting Company; WDAC Radio Company;
> Pinebrook Foundation, Inc.; Alpha & Omega Communications, LLC;
> Pollack/Belz Communication Company, Inc.; Pollack/Belz Broadcasting
> Company, LLC; Baldwin Broadcasting Company; Eagle III Broadcasting,
> LLC (Delta Radio)

14\. Evening Post Publishing Company & Great Empire Broadcasting, Inc.
(Evening Post)

15\. Forty-Six Named State Broadcasters Associations (46 Named StBAs)

16\. Golden Orange Broadcasting Company (Golden Orange)

17\. Good News Radio (GNR)

18\. Haley Bader & Potts (HBP)

19\. Institute for Justice (Institute)

20\. Minority Media and Telecommunications Council; African American
Media Incubator; Alliance for Community Media; Alliance for Public
Technology; American Civil Liberties Union; Black College Communications
Association; Civil Rights Forum on Communications Policy; Cultural
Environment Movement; Fairness and Accuracy in Reporting; League of
United Latin American Citizens; Mexican American Legal Defense and
Education Fund; Minority Business Enterprise Legal Defense and Education
Fund; National Asian American Telecommunications Association; National
Asian Pacific American Legal Consortium; National Association of Black
Owned Broadcasters; National Association of Black Telecommunications
Professionals; National Association for the Advancement of Colored
People; National Association of Black Journalists; National Bar
Association; National Council of La Raza; National Hispanic Media
Coalition, including its Los Angeles, New York, Chicago, Tucson,
Albuquerque, Phoenix and San Antonio Chapters; National Latino
Telecommunications Taskforce; National Urban League; People for the
American Way; Project on Media Ownership; Puerto Rican Legal Defense and
Education Fund; Rainbow/PUSH Coalition; Telecommunications Advocacy
Project; Telecommunications Research and Action Center; Women's
Institute for Freedom of the Press (MMTC)

21\. National Association of Broadcasters (NAB)

22\. National Cable Television Association (NCTA)

23\. National Hispanic Foundation for the Arts (NHFA)

24\. National Religious Broadcasters (NRB)

25\. New Jersey Broadcasters Association (NJBA)

26\. NOW Foundation; NOW Legal Defense and Education Fund; Center for
Media Education; Feminist Majority Foundation; Philadelphia Lesbian and
Gay Task Force; Women's Institute for Freedom of the Press (NOW)

27\. Office of Communication, Inc., United Church of Christ; National
Council of the Churches of Christ in the U.S.A.; Office of
Communication, Evangelical Lutheran Church in America; Presbyterian
Church \[U.S.A.\]; United Methodist Church, Ecumenical Office; American
Baptist Churches, USA; Black Citizens for a Fair Media (UCC)

28\. Office of Management and Budget (OMB)

29\. Michael Oxley/Ralph Hall - Members, United States Congress
(Oxley/Hall)

30\. Pacific Legal Foundation (PLF)

31\. Patrice Rhodes (Patrice Rhodes)

32\. Small Cable Business Association (SCBA)

33\. Smithwick & Belendiuk, P.C. (S&B)

34\. Laurey Tantra (Tantra)

35\. Tele-Communications, Inc. (TCI)

36\. Texas Association of Broadcasters (TAB)

37\. Time Warner Cable (Time Warner)

38\. United States Small Business Administration (SBA)

39\. Doreen Vincent (Vincent)

40\. Virginia Association of Broadcasters and North Carolina Association
of Broadcasters (VAB/NCAB)

41\. The WBUR Group (WBUR)

42\. Suzanne White (Suzanne White)

[Reply Comments]{.underline}

1\. Americans United for Separation of Church and State (Americans
United)

2\. Eight Broadcast Groups (Eight Broadcast Groups)

3\. Fisher Broadcasting Inc. (Fisher)

4\. Forty-Six Named State Broadcasters Associations

5\. Gerri L. Gagnon (Gerri L. Gagnon)

6\. Lawyers' Committee for Civil Rights Under Law (Lawyers' Committee)

7\. Lincoln Broadcasting Company, (Lincoln)

8\. Minority Media and Telecommunications Council; African American
Media Incubator; Alliance for Community Media; Alliance for Public
Technology; American Civil Liberties Union; Black College Communications
Association; Civil Rights Forum on Communications Policy; Cultural
Environment Movement; Fairness and Accuracy in Reporting; League of
United Latin American Citizens; Mexican American Legal Defense and
Education Fund; Minority Business Enterprise Legal Defense and Education
Fund; National Asian American Telecommunications Association; National
Asian Pacific American Legal Consortium; National Association of Black
Owned Broadcasters; National Association of Black Telecommunications
Professionals; National Association for the Advancement of Colored
People; National Association of Black Journalists; National Bar
Association; National Council of La Raza; National Hispanic Media
Coalition, including its Los Angeles, New York, Chicago, Tucson,
Albuquerque, Phoenix and San Antonio Chapters; National Latino
Telecommunications Taskforce; National Urban League; People for the
American Way; Project on Media Ownership; Puerto Rican Legal Defense and
Education Fund; Rainbow/PUSH Coalition; Telecommunications Advocacy
Project; Telecommunications Research and Action Center; Women's
Institute for Freedom of the Press

9\. National Association of Broadcasters

10\. National Cable Television Association

11\. NOW Foundation; NOW Legal Defense and Education Fund; Center for
Media Education; Feminist Majority Foundation; Philadelphia Lesbian and
Gay Task Force; Women's Institute for Freedom of the Press

12. Office of Communication, Inc., United Church of Christ; National
    Council of the Churches of Christ in the U.S.A., Communication
    Commission; Evangelical Lutheran Church in America; Presbyterian
    Church \[U.S.A.\]; United Methodist Church; American Baptist
    Churches, USA; Black Citizens for a Fair Media

> **APPENDIX B**

**FINAL REGULATORY FLEXIBILITY ANALYSIS**

As required by the Regulatory Flexibility Act (RFA),[^372] an Initial
Regulatory Flexibility Analysis (IRFA) was incorporated into the *Notice
of Proposed Rule Making (NPRM)* in this proceeding.[^373] The Commission
sought written public comments on the possible significant economic
impact of the proposed policies and rules on small entities in the
*NPRM*, including comments on the IRFA. This Final Regulatory
Flexibility Analysis (FRFA) conforms to the RFA.

**A.** **Need for and Objectives of the Rules**

The D.C. Circuit court in *Lutheran Church - Missouri Synod v.
FCC*[^374] held that the equal employment opportunity (EEO) program
requirements of the Commission's EEO Rule for broadcasters were
unconstitutional and remanded to the Commission to determine whether we
have authority to enforce an employment nondiscrimination requirement.
The *Report and Order* adopts new EEO rules and policies for
broadcasters and cable entities, including multichannel video
programming distributors (MVPDs), consistent with the *Lutheran Church*
decision. The new EEO rules retain the FCC's anti-discrimination
provisions and prohibit broadcasters and cable entities from engaging in
discriminatory practices. In addition, the rules require broadcasters
and cable entities to establish and maintain an EEO program designed to
provide equal opportunity for everyone, including minorities and women.
The new rules emphasize inclusive recruitment outreach and prohibit
entities from preferring members of any racial, national origin, or
gender group in hiring. We note that SBA has approved our approach for
small stations and small cable entities in this *Report and
Order*.[^375]

**B. Summary of Significant Issues Raised by the Public Comments in
Response to the IRFA**

Three comments were filed specifically in response to the IRFA.[^376]
SCBA states that EEO recruiting, recordkeeping and reporting
requirements substantially impact small cable systems since they have
limited financial and administrative resources. It urges the Commission
to consider its comments regarding small cable entities filed in
response to the *NPRM*.[^377] For the purpose of providing EEO relief to
small cable operators, SCBA believes that a small cable company should
be defined by its number of employees, and not its amount of gross
revenues, as currently defined by the SBA. It states that a cable
system's gross revenues or number of subscribers does not correspond
well to EEO rules. We note that the *Report and Order* considers SCBA's
concerns and provides relief to small cable employment units on the
basis of unit staff size, and by streamlining reporting and
recordkeeping requirements for all cable entities.

The SBA urges the FCC to look at the economic impact of its proposed EEO
requirements on small stations consistent with the RFA, and if
necessary, to maintain its EEO exemptions for small stations defined as
those with fewer than five employees. [^378] We note that this FRFA
conforms to the RFA, and that the Report and Order continues to exempt
broadcast station employment units with fewer than five full-time
employees from the FCC's specific EEO requirements, as well as providing
additional relief for employment units that have between five and ten
full-time employees.

**C. Description and Estimate of the Number of Small Entities to Which
the Rules Would Apply**

The RFA directs the Commission to provide a description of and, where
feasible, an estimate of the number of small entities that may be
affected by the proposed rules.[^379] Under the RFA, small entities may
include small organizations, small businesses, and small governmental
jurisdictions. 5 U.S.C. § 601(6). The RFA, 5 U.S.C. § 601(3), generally
defines the term "small business" as having the same meaning as the term
"small business concern" under the Small Business Act, 15 U.S.C. § 632.
A small business concern is one which: (1) is independently owned and
operated; (2) is not dominant in its field of operation; and (3)
satisfies any additional criteria established by the SBA. Pursuant to 4
U.S.C. § 601(3), the statutory definition of a small business applies
"unless an agency after consultation with the Office of Advocacy of the
SBA and after opportunity for public comment, establishes one or more
definitions of such term which are appropriate to the activities of the
agency and publishes such definition(s) in the Federal Register."[^380]
The rules we adopt in this *Report and Order* will affect broadcast
stations and cable entities, including multichannel video programming
distributors.

An element of the definition of "small business" is that the entity not
be dominant in its field of operation. We are unable at this time to
define or quantify the criteria that would establish whether a specific
radio or television station is dominant in its field of operation.
Accordingly, the following estimates of small businesses to which the
new rules will apply do not exclude any radio or television station from
the definition of a small business on this basis and are therefore
overinclusive to that extent. An additional element of the definition of
"small business" is that the entity must be independently owned and
operated. As discussed further below, we could not fully apply this
criterion, and our estimates of small businesses to which the rules may
apply may be overinclusive to this extent. Last, with respect to
applying SBA size standards revenue caps, the SBA has defined "annual
receipts" specifically in 13 C.F.R § 121.104, and its calculations
include an averaging process. We do not currently require submission of
financial data from licensees that we could use in applying the SBA's
definition of a small business. Thus, for purposes of estimating the
number of small entities to which the rules apply, we are limited to
considering the revenue data that are publicly available, and those data
may not correspond completely with the SBA definition of annual
receipts.

*Television and Radio Stations*: The rules in this *Report and Order*
will apply to television and radio stations. The Small Business
Administration defines a television broadcasting station that has no
more than \$10.5 million in annual receipts as a small business.[^381]
Television broadcasting stations consist of establishments primarily
engaged in broadcasting visual programs by television to the public,
except cable and other pay television services.[^382] Included in this
industry are commercial, religious, educational, and other television
stations. Also included are establishments primarily engaged in
television broadcasting and which produce taped television program
materials.[^383]

There were 1,509 full-service television stations operating in the
nation in 1992.[^384] That number has remained fairly constant as
indicated by the approximately 1,616 operating full-service television
broadcasting stations in the nation as of September 1999.[^385] For
1992[^386] the number of television stations that produced less than
\$10.0 million in revenue was 1,155 establishments.[^387] Thus, the
rules will affect approximately 1,616 television stations; approximately
77%, or 1,244 of those stations are considered small businesses.[^388]
These estimates may overstate the number of small entities since the
revenue figures on which they are based do not include or aggregate
revenues from non-television affiliated companies.

The rule changes would also affect radio stations. The SBA defines a
radio broadcasting station that has no more than \$5 million in annual
receipts as a small business.[^389] A radio broadcasting station is an
establishment primarily engaged in broadcasting aural programs by radio
to the public.[^390] Included in this industry are commercial,
religious, educational, and other radio stations.[^391] Radio
broadcasting stations which primarily are engaged in radio broadcasting
and which produce radio program materials are similarly included.[^392]
The 1992 Census indicates that 96 percent (5,881 of 6,127) of radio
station establishments produced less than \$5 million in revenue in
1992.[^393] Official Commission records indicate that 11,334 individual
radio stations were operating in 1992.[^394] As of September 1999,
official Commission records indicate that 12,615 radio stations were
operating.[^395]

*Small cable entities, including MVPDs*: The rule changes would also
affect small cable entities, including MVPDs. SBA has developed a
definition of a small entity for cable and other pay television
services, which includes all such companies generating \$11 million or
less in annual receipts.[^396] This definition includes cable system
operators, closed circuit television services, direct broadcast
satellite services (DBS), multipoint distribution systems (MDS),
satellite master antenna systems (SMATV), and subscription television
services. According to the Bureau of the Census, there were 1,423 such
cable and other pay television services generating less than \$11
million in revenue that were in operation for at least one year at the
end of 1992.[^397] Below we discuss these services to provide a more
succinct estimate of small entities.

*Cable Systems*: The Commission has developed, with SBA's approval, its
own definition of small cable system operators. Under the Commission's
rules, a "small cable company" is one serving fewer than 400,000
subscribers nationwide.[^398] Based on our most recent information, we
estimate that there were 1,439 cable operators that qualified as small
cable companies at the end of 1995.[^399] Since then, some of those
companies may have grown to serve over 400,000 subscribers, and others
may have been involved in transactions that caused them to be combined
with other cable operators. Consequently, we estimate that there are
fewer than 1,439 small entity cable system operators that may be
affected by the rules proposed herein.

The Communications Act also contains a definition of a small cable
system operator, which is "a cable operator that, directly or through an
affiliate, serves in the aggregate fewer than 1% of all subscribers in
the United States and is not affiliated with any entity or entities
whose gross annual revenue in the aggregate exceeds
\$250,000,000."[^400] The Commission has determined that there are
61,700,000 subscribers in the United States. Therefore, we found that an
operator serving fewer than 617,000 subscribers shall be deemed a small
operator, if its annual revenues, when combined with the total annual
revenues of all of its affiliates, do not exceed \$520 million in the
aggregate.[^401] Based on available data, we find that the number of
cable operators serving 617,000 subscribers or fewer totals 1,450.[^402]
Although it seems certain that some of these cable system operators are
affiliated with entities whose gross annual revenues exceed
\$250,000,000, we are unable at this time to estimate with greater
precision the number of cable system operators that would qualify as
small cable operators under the definition in the Communications Act.

*MDS:* The Commission has defined "small entity" for purposes of the
auction of MDS as an entity that, together with its affiliates, has
average gross annual revenues that are not more than \$40 million for
the preceding three calendar years.[^403] This definition of a small
entity in the context of MDS auctions has been approved by the
SBA.[^404] The Commission completed its MDS auction in March 1996 for
authorizations in 493 basic trading areas (BTAs). Of 67 winning bidders,
61 qualified as small entities.[^405]

MDS also includes licensees of stations authorized prior to the auction.
As noted, the SBA has developed a definition of small entities for pay
television services, which includes all such companies generating \$11
million or less in annual receipts.[^406] This definition includes
multipoint distribution systems, and thus applies to MDS licensees and
wireless cable operators that did not participate in the MDS auction.
Information available to us indicates that there are 832 of these
licensees and operators that do not generate revenue in excess of \$11
million annually. Therefore, for purposes of this FRFA, we find there
are approximately 892 small MDS providers as defined by the SBA and the
Commission's auction rules, and some of these providers may be subject
to our EEO rules.

*DBS:* As of November 1999, there are four DBS licensees, one of which
is not in operation. Providing DBS service requires a great investment
of capital to build, launch, and operate satellite systems. Typically,
small businesses do not have the financial ability to become DBS
licensees because of the high implementation costs associated with
launching satellites. Most recent industry statistics suggest that the
revenue attributed to DBS subscribers for EchoStar was \$682.8 million
for the year of 1998 and \$1.55 billion for DIRECTV. We do not have
similar revenue information for the third operating licensee, Dominion
Video Satellite, Inc. However, we do not believe that any DBS licensees
could be categorized as small businesses.

*Estimates Based on Staff Size*: As described, for purposes of providing
relief from our EEO rules for entities with fewer staff resources, the
*Report and Order* classifies such entities by number of employees. We
estimate that, in 1997, the total number of full-service broadcast
stations with fewer than five employees was 5,186, of which 340 were
television stations.[^407] Similarly, we estimate that, in 1997, 2,750
cable system or SMATV employment units employed fewer than six full-time
employees. Also, in 1997, 725 MVPD employment units employed fewer than
six full-time employees.

We also estimate that, in 1997, the total number of full-service
broadcast stations with five to ten employees was 2,145, of which 200
were television stations.[^408] Similarly, we estimate that, in 1997,
322 cable system or SMATV employment units employed six to ten full-time
employees. Also, in 1997, 65 MVPD employment units employed six to ten
full-time employees.

**D. Summary of Projected Reporting, Recordkeeping, and Other Compliance
Requirements**

The *Report and Order* adopts changes to existing EEO recordkeeping and
reporting requirements. It also specifies which EEO materials are
required to be kept in the public inspection file. All broadcasters and
cable entities must adhere to the EEO rules' general anti-discrimination
provisions. Broadcasters with station employment units of five to ten
full-time employees are provided some relief from EEO requirements, and
station employment units of fewer than five full-time employees are
exempt altogether, with the exception that all broadcasters are subject
to the nondiscrimination requirement and must report any employment
discrimination complaints filed against them. Cable employment units,
including MVPD employment units, employing six to ten full-time
employees are also provided some relief from the *Report and Order's*
specific EEO program requirements, and cable employment units with fewer
than six full-time employees are not required to demonstrate compliance
with the EEO program requirements. Generally, no special skills will be
necessary to comply with the requirements.

Specifically, the *Report and Order* requires broadcasters and cable
entities to widely disseminate information concerning job vacancies.
Additionally, broadcasters and cable entities must undertake two
supplemental recruitment measures described herein. The first
supplemental recruitment measure requires broadcasters and cable
entities to provide notification of full-time job vacancies to any
requesting organization if the organization regularly distributes
information about employment opportunities or refers job seekers to
employers. Depending on the size of a station's staff, the second
supplemental recruitment measure requires broadcasters to engage in at
least four (for station employment units with more than ten full-time
employees) or two (for station employment units with five to ten
full-time employees) of the following menu options every two years: job
fairs, job banks and other general outreach efforts, scholarship
programs, in-house training programs, mentoring programs, community
events related to employment opportunities in the industry, industry
career events/programs by educational institutions, internship programs,
the listing of upper-level vacancies in a job bank or newsletter of
media trade groups whose membership includes substantial participation
of women and minorities, and other activities to disseminate information
regarding industry employment opportunities, as designed by the
broadcaster. Cable employment units with more than ten full-time
employees must engage in at least two options from the supplemental
recruitment measures menu every year and cable employment units with six
to ten full-time employees must engage in at least one option every
year. Broadcasters and cable entities that desire more flexibility in
their recruitment procedures may dispense with the supplemental
recruitment measures as long as they are able to demonstrate success in
achieving broad outreach to all segments of the community, as based upon
an analysis of the recruitment source, race, national origin, and gender
of the applicants attracted by their outreach efforts.

In addition, the *Report and Order* requires broadcasters and cable
entities to retain records to demonstrate that they have recruited for
all full-time permanent positions. To alleviate recordkeeping burdens,
records may be kept in an electronic format. Such recordkeeping shall
include: listings of all full-time vacancies filled, listings of
recruitment sources, the address/contact person/telephone number of each
recruitment source, and dated copies of advertisements and other
documentation announcing vacancies. Broadcasters and cable entities
engaging in supplemental recruitment measures must show organizations
which requested notification and must also maintain: records and proof
of participation in menu options, the total number and referral source
of all interviewees, and dates of hire along with the name of the
recruitment source which referred the hiree. These revised recordkeeping
requirements significantly reduce the cost of compliance because
broadcasters and cable entities that use this approach no longer have to
keep extensive records on the race and gender of all applicants and
interviewees, as was the case under our former EEO rules. For those
broadcasters and cable entities that opt out of the supplemental
recruitment measures, we will require that they maintain records of the
recruitment source, race, national origin, and gender of qualified
applicants in order to demonstrate that they widely disseminated
information about job openings. Some broadcasters and cable entities,
especially the ones with fewer employees, may have only a few vacancies
generally available so that this option may be less burdensome to them.
Broadcasters' records must be maintained until grant of the renewal
application for the term during which the hiring activity occurred.
Cable entities must retain their records for a minimum of seven years.
To determine compliance with the EEO rules, the Commission may conduct
inquiries requesting the records of a broadcaster or cable entity.

The *Report and Order* also requires stations and cable employment units
to place annually the following EEO records in their local public
inspection file: listings of full-time vacancies filled and recruitment
sources used for each vacancy during the preceding year and the
address/contact person/telephone number of each recruitment source.
Broadcasters and cable entities engaging in supplemental recruitment
measures must also include in their public file: an indication of the
organizations requesting notification, the recruitment source of all
full-time hirees during the preceding year, the total number of persons
interviewed for full-time vacancies during the preceding year as well as
the total number of interviewees referred by each recruitment source for
that vacancy, and a brief description of the menu option items
undertaken during the preceding year. Those broadcasters and cable
entities that opt out of the supplemental recruitment measures must
include in their public file: the total number of applicants generated
by each recruitment source utilized for any full-time vacancy during the
preceding year, and the number of those applicants who were female and
the number who were minority, identified by the applicable racial and/or
national origin group with which each applicant is associated. Station
units must retain the materials in their file until final action has
been taken on the station's next license renewal application, and cable
entities must retain their materials for a period of five years.

In addition, broadcasters must file a Statement of Compliance (Form 397)
every second, fourth and sixth year of the license term, on the
anniversary of the date the station is due to file its renewal, stating
whether the station has complied with the EEO Rule. Broadcasters must
place a copy of the latest Statement in the public inspection file.
Broadcasters must also continue to place a copy of Form 396 ("Broadcast
EEO Program Report") in the public inspection file. However,
broadcasters are no longer required to place a copy of their station's
Form 395-B ("Broadcast Station Annual Employment Report") in the public
file. Cable employment units must continue to place a copy of Forms
395-A ("Cable Television Annual Employment Report") or 395-M
("Multi-Channel Video Program Distributor Annual Employment Report") in
their public file. Also, most broadcasters must submit the contents of
their station's EEO public inspection file to the FCC at renewal time
and midway through the license term for the Commission's mid-term review
and cable entities with six or more full-time employees must submit
copies of their EEO public inspection file to the Commission every five
years. However, broadcasters may limit their submissions to cover only
the last 12 months of EEO activity. These changes reduce burdens on all
station and cable employment units, both by more clearly defining what
must be retained and by specifying the period of retention.

The *Report and Order* eliminates sections concerning specific
categories of recruitment sources from Form 396-A ("Model EEO Program
Report"). The *Report and Order* also eliminates many sections from Form
396, including sections requesting information on local labor force
statistics, and the number of minority and female hires and promotions.
The *Report and Order* provides further relief to broadcasters by
enabling them to file only one Form 395-B for all commonly owned
stations in the same market sharing at least one employee. Form 396 will
include a new section for broadcasters to provide a narrative statement
demonstrating how the station achieved broad and inclusive outreach.
With respect to cable entities, the *Report and Order* eliminates all
sections on Forms 395-A and 395-M concerning available labor force and
occupational data, employee promotions and job hires.

**E. Steps Taken to Minimize Significant Economic Impact on Small
Entities, and Significant Alternatives Considered**

This *Report and Order* sets forth the Commission's new EEO rules and
procedures, and considers all of the significant alternatives presented
in the comments. We have determined that our finalized rules fulfill our
public interest goals while maintaining minimal regulatory burdens and
ease and clarity of administration. The new EEO rules and procedures are
designed to keep essential filing and recordkeeping burdens at a
minimum, and increase the efficiency of application processing for all
broadcasters and cable entities, including small entities.

The *NPRM* requested comment on the Commission's proposal to exempt
small staff stations or stations located in small markets from specific
EEO recordkeeping and reporting requirements. The *NPRM* proposed to
increase the current staff exemption threshold of fewer than five
full-time employees to ten or fewer full-time employees. There was no
specific proposal regarding the market threshold for exempting stations.
Although we received a few comments regarding small market exemptions,
the majority of comments addressed our proposal to increase the staff
exemption threshold. Commenters argue that an increase is warranted
since stations with small staffs have limited personnel and financial
resources to carry out EEO requirements. Other commenters argue against
a total exemption from the broadcast EEO Rule for stations with ten or
fewer employees since such stations play a pivotal role in providing
essential entry-level opportunities into the broadcast industry. As
discussed in the *Report and Order*, we believe that a total exemption
is unnecessary since the new EEO Rule streamlines and clarifies
recordkeeping requirements, thereby benefiting all broadcasters,
including stations with fewer employees. For this same reason, we also
believe that additional EEO relief is not warranted for small market
stations. Such relief is already built into the new Rule, as further
evidenced by the flexibility it affords broadcasters to tailor their EEO
programs to their station's particular circumstances, including market
size. However, because fewer staff resources are available to them, we
believe that station employment units with five to ten full-time
employees, which are the smallest staff stations subject to our EEO
program requirements, warrant additional relief from EEO program
requirements. Therefore, for those broadcasters employing supplemental
recruitment measures, we will require station employment units with five
to ten full-time employees to engage in only two of the menu options
listed in the EEO Rule during each two-year period. Station employment
units with more than ten full-time employees are required to engage in
four menu options during each two-year period. While not providing a
total exemption from our EEO Rule, this approach does provide additional
EEO relief to station employment units with five to ten employees.
Further, we will exempt radio station employment units with six to ten
employees from new mid-term review procedures. Currently, mid-term
reviews for all television stations with five or more full-time
employees are required by statute. However, only about 200 television
stations (or 13%) had between five and ten employees in 1997.[^409]
Also, a station will not qualify for relief if it shares one or more
employees with one or more commonly owned stations in the same market
and their combined staffs total more than ten full-time employees since
such stations are considered one employment unit for EEO purposes.

We also received comments arguing that cable systems with small staffs
should be provided EEO relief since they, too, have limited personnel
and financial resources. Upon consideration, we will require cable
employment units with six to ten full-time employees that use the
supplemental recruitment measures to engage in only one option from the
supplemental recruitment measures menu each year, as opposed to the two
options required otherwise.

We will continue to exempt broadcast station employment units with fewer
than five full-time employees from our specific EEO program
requirements. In addition, cable employment units with fewer than six
full-time employees will still not be required to demonstrate compliance
with the EEO program requirements.

**F. Federal Rules that May Duplicate, Overlap, or Conflict with the EEO
Rules**

Oxley/Hall maintain that the FCC's proposed EEO program substantially
replicates the work of the Equal Employment Opportunity Commission
(EEOC).[^410] As we stated in the *Report and Order*, while the EEOC and
FCC share as a common goal the elimination of discriminatory employment
practices, the primary functions of the two agencies differ greatly.
Whereas the EEOC reviews discrimination complaints in order to provide
relief to victims of discrimination, the FCC's principal concern with
respect to discrimination allegations is to determine the fitness of
broadcasters and cable entities to fulfill their obligations under the
Communications Act. Moreover, the *Memorandum of Understanding Between
the Federal Communications Commission and the Equal Employment
Opportunity Commission*, 51 Fed. Reg. 21798 (1986), coordinates and
minimizes overlap of the enforcement efforts of the two agencies.

**[Report to Congress]{.underline}**: The Commission will send a copy of
the *Report and Order,* including this FRFA, in a report to be sent to
Congress pursuant to the Small Business Regulatory Enforcement Fairness
Act of 1996, 5 U.S.C. § 801(a)(1)(A). In addition, the Commission's
Consumer Information Bureau, Reference Information Center, will send a
copy of this *Report and Order*, including this FRFA, to the Chief
Counsel for Advocacy of the Small Business Administration. A copy of the
*Report and Order* and FRFA (or summaries thereof) will also be
published in the Federal Register.

**APPENDIX C**

**I. Part 1 of Chapter 1 of Title 47 of the Code of Federal Regulations
is amended as follows:**

**Subpart B - Delegated Authority**

Section 0.283 is revised by amending paragraph (b)(1)(iii) to read as
follows:

**§ 0.283 Authority delegated.**

\* \* \* \* \*

\(b\) \* \* \*

\(1\) Petitions to deny, informal objections, and other petitions,
directed against AM, FM, and TV applications for new or modified
facilities, or for renewal, assignment or transfer of control, will be
referred to the Commission if they:

\(i\) \* \* \*

\(ii\) \* \* \*

\(iii\) present documented allegations of failure to comply with the
Commission's Equal Employment Opportunity rules and policies.

\* \* \* \* \*

**II. Part 73 of Chapter 1 of Title 47 of the Code of Federal
Regulations is amended as follows:**

**Subpart H - Rules Applicable to All Broadcast Stations**

Section 73.2080 is amended to delete the present language in its
entirety and replace it with the following:

**§ 73.2080. Equal employment opportunities ("EEO").**

\(a\) *General EEO policy*. Equal opportunity in employment shall be
afforded by all licensees or permittees of commercially or
noncommercially operated AM, FM, TV or international broadcast stations
(as defined in this part) to all qualified persons, and no person shall
be discriminated against in employment by such stations because of race,
color, religion, national origin, or sex. Religious radio broadcasters
may establish religious belief or affiliation as a job qualification for
all station employees. However, they cannot discriminate on the basis of
race, color, national origin or gender from among those who share their
religious affiliation or belief. For purposes of this rule, a religious
broadcaster is a licensee which is, or is closely affiliated with, a
church, synagogue, or other religious entity, including a subsidiary of
such an entity.

\(b\) *General EEO program requirements*. Each broadcast station shall
establish, maintain, and carry out a positive continuing program of
specific practices designed to ensure equal opportunity and
nondiscrimination in every aspect of station employment policy and
practice. Under the terms of its program, a station shall:

\(1\) Define the responsibility of each level of management to ensure
vigorous enforcement of its policy of equal opportunity, and establish a
procedure to review and control managerial and supervisory performance;

\(2\) Inform its employees and recognized employee organizations of the
equal employment opportunity policy and program and enlist their
cooperation;

\(3\) Communicate its equal employment opportunity policy and program
and its employment needs to sources of qualified applicants without
regard to race, color, religion, national origin, or sex, and solicit
their recruitment assistance on a continuing basis;

\(4\) Conduct a continuing program to exclude all unlawful forms of
prejudice or discrimination based upon race, color, religion, national
origin, or sex from its personnel policies and practices and working
conditions; and

\(5\) Conduct a continuing review of job structure and employment
practices and adopt positive recruitment, job design, and other measures
needed to ensure genuine equality of opportunity to participate fully in
all organizational units, occupations, and levels of responsibility.

\(c\) *Specific EEO program requirements.* Under the terms of its
program, a station employment unit must:

\(1\) Recruit for every job vacancy in its operation. A job filled by an
internal promotion is not considered a vacancy for which recruitment is
necessary. Religious radio broadcasters who establish religious
affiliation as a qualification for a job position are not required to
comply with these recruitment requirements with respect to that job
position or positions, but will be expected to make reasonable, good
faith efforts to recruit applicants who are qualified based on their
religious affiliation. Nothing in this section shall be interpreted to
require a broadcaster to grant preferential treatment to any individual
or group based on race, color, national origin, religion, or gender.

\(i\) A station employment unit shall use recruitment sources for each
vacancy sufficient in its reasonable, good faith judgment to widely
disseminate information concerning the vacancy.

\(ii\) In addition to such recruitment sources, a station employment
unit shall provide notification of each vacancy to any organization that
distributes information about employment opportunities to job seekers or
refers job seekers to employers, upon request by such organization. To
be entitled to notice of vacancies, the requesting organization must
provide the station employment unit with its name, mailing address,
e-mail address (if applicable), telephone number, and contact person,
and identify the category or categories of vacancies of which it
requests notice. (An organization may request notice of all vacancies).

\(2\) Engage in at least four (if the station employment unit has more
than ten full-time employees) or two (if it has five to ten full-time
employees) of the following initiatives during each two-year period
preceding the filing of a Statement of Compliance pursuant to subsection
(g) hereof:

\(i\) participation in at least four job fairs by station personnel who
have substantial responsibility in the making of hiring decisions;

\(ii\) hosting of at least one job fair;

\(iii\) co-sponsoring at least one job fair with organizations in the
business and professional community whose membership includes
substantial participation of women and minorities;

\(iv\) participation in at least four events sponsored by organizations
representing groups present in the community interested in broadcast
employment issues, including conventions, career days, workshops, and
similar activities;

\(v\) establishment of an internship program designed to assist members
of the community to acquire skills needed for broadcast employment;

\(vi\) participation in job banks, internet programs, and other programs
designed to promote outreach generally (*i.e.*, that are not primarily
directed to providing notification of specific job vacancies);

\(vii\) participation in scholarship programs designed to assist
students interested in pursuing a career in broadcasting;

\(viii\) establishment of training programs designed to enable station
personnel to acquire skills that could qualify them for higher level
positions;

\(ix\) establishment of a mentoring program for station personnel;

\(x\) participation in at least four events or programs sponsored by
educational institutions relating to career opportunities in
broadcasting;

\(xi\) sponsorship of at least two events in the community designed to
inform and educate members of the public as to employment opportunities
in broadcasting;

\(xii\) listing of each upper-level category opening in a job bank or
newsletter of media trade groups whose membership includes substantial
participation of women and minorities;

\(xiii\) participation in other activities designed by the station
employment unit reasonably calculated to further the goal of
disseminating information as to employment opportunities in broadcasting
to job candidates who might otherwise be unaware of such opportunities.

\(3\) Analyze its recruitment program on an ongoing basis to ensure that
it is effective in achieving broad outreach to potential applicants, and
address any problems found as a result of its analysis.

\(4\) Periodically analyze measures taken to:

\(i\) Disseminate the station's equal employment opportunity program to
job applicants and employees;

\(ii\) Review seniority practices to ensure that such practices are
nondiscriminatory;

\(iii\) Examine rates of pay and fringe benefits for employees having
the same duties, and eliminate any inequities based upon race, national
origin, color, religion, or sex discrimination;

\(iv\) Utilize media for recruitment purposes in a manner that will
contain no indication, either explicit or implicit, of a preference for
one race, national origin, color, religion or sex over another;

\(v\) Ensure that promotions to positions of greater responsibility are
made in a nondiscriminatory manner;

\(vi\) Where union agreements exist, cooperate with the union or unions
in the development of programs to assure all persons equal opportunity
for employment, irrespective of race, national origin, color, religion,
or sex, and include an effective nondiscrimination clause in new or
renegotiated union agreements; and

\(vii\) Avoid the use of selection techniques or tests that have the
effect of discriminating against any person based on race, national
origin, color, religion, or sex.

\(5\) Retain records to document that it has satisfied the requirements
of paragraphs (c)(1) and (2) of this section. Such records, which may be
maintained in an electronic format, shall be retained until after grant
of the renewal application for the term during which the vacancy was
filled or the initiative occurred. Such records need not be submitted to
the FCC unless specifically requested. The following records shall be
maintained:

\(i\) listings of all full-time job vacancies filled by the station
employment unit, identified by job title;

\(ii\) for each such vacancy, the recruitment sources utilized to fill
the vacancy (including, if applicable, organizations entitled to
notification pursuant to paragraph (c)(1)(ii) of this section, which
should be separately identified), identified by name, address, contact
person and telephone number;

\(iii\) dated copies of all advertisements, bulletins, letters, faxes,
e-mails, or other communications announcing vacancies;

\(iv\) documentation necessary to demonstrate performance of the
initiatives required by paragraph (c)(2) of this section, if applicable,
including sufficient information to fully disclose the nature of the
initiative and the scope of the station\'s participation, including the
station personnel involved;

\(v\) the total number of interviewees for each vacancy and the referral
source for each interviewee; and

\(vi\) the date each vacancy was filled and the recruitment source that
referred the hiree.

\(6\) Annually, on the anniversary of the date a station is due to file
its renewal application, the station shall place in its public file,
maintained pursuant to § 73.3526 or § 73.3527, and on its web site, if
it has one, an EEO public file report containing the following
information:

\(i\) a list of all full-time vacancies filled by the station\'s
employment unit during the preceding year, identified by job title;

\(ii\) for each such vacancy, the recruitment source(s) utilized to fill
the vacancy (including, if applicable, organizations entitled to
notification pursuant to paragraph (c)(1)(ii) of this section, which
should be separately identified), identified by name, address, contact
person and telephone number;

\(iii\) the recruitment source that referred the hiree for each
full-time vacancy during the preceding year;

\(iv\) data reflecting the the total number of persons interviewed for
full-time vacancies during the preceding year and the total number of
interviewees referred by each recruitment source utilized in connection
with such vacancies; and

\(v\) a list and brief description of initiatives undertaken pursuant to
paragraph (c)(2) of this section during the preceding year, if
applicable.

\(7\) Stations shall substantially comply with paragraph (c)(1)(i) of
this section in connection with hires for part-time positions. The
provisions of paragraph (c) are not otherwise applicable to hires for
part-time positions.

\(d\) *Alternative Recruitment Requirements*. A station employment unit
may elect not to utilize the provisions of paragraph (c)(1)(ii)
(notification to community groups) and (c)(2) (menu options) hereof,
provided that it complies with the following requirements:

\(1\) The station employment unit shall maintain records as required by
paragraph (c)(5)(i) through (iii) and shall maintain, in lieu of the
records required by paragraph (c)(5)(iv) through (vi), data reflecting
the recruitment source, gender, and racial and/or ethnic status of
applicants for each full-time job vacancy filled by the station
employment unit;

\(2\) The station employment unit shall include in the annual EEO public
file report required by paragraph (c)(6) the information specified in
paragraph (c)(6)(i) and (ii) and, in lieu of the information required by
paragraph (c)(6)(iii) through (v), data reflecting, for each recruitment
source utilized for any full-time vacancy during the preceding year, the
total number of applicants generated by that source, the number of
applicants who were female, and the number of applicants who were
minority, identified by the applicable racial and/or ethnic group with
which each applicant is associated.

\(3\) Station employment units electing to proceed under this paragraph
shall otherwise comply with the requirements specified in paragraph (c).

\(e\) *Election Procedures*. Within forty-five days of the effective
date of this Rule, each station employment unit shall elect whether it
wishes to utilize the recruitment procedures specified in paragraph (c)
or the alternate recruitment procedures specified in paragraph (d) and
shall file with the Commission a statement indicating the election which
shall also be placed in the station(s) public inspection file maintained
pursuant to § 73.3526 or § 73.3527. An applicant for a new station or
for the transfer or assignment of an existing license filed on FCC Form
314 or 315 shall state its election on FCC Form 396-A submitted with the
application. A station employment unit may change its election every two
years at the time of the filing of the Statement of Compliance
referenced in paragraph (i)(1) below, or at the time of the filing of
its renewal application. If the station employment unit wishes to change
its election, it shall so state in its Statement of Compliance or FCC
Form 396 accompanying the renewal application.

\(f\) *Mid-term review for broadcast stations*. The Commission will
conduct a mid-term review of the employment practices of each broadcast
television station and each radio station that is part of an employment
unit of more than ten full-time employees four years following the
station's most recent license expiration date as specified in § 73.1020.
Each such licensee is required to file with the Commission the station's
EEO public file report, as described in paragraphs (c)(6) or (d)(2) of
this section, along with the relevant Statement of Compliance (Form
397), as described in paragraph (i)(1) of this section, four months
before the date specified in the previous sentence. The EEO public file
report should cover the station's activities during the 12-month period
prior to its submission.

\(g\) *Small Station Exemption*. The provisions of paragraphs (b), (c),
(d), (e), and (f) of this section shall not apply to station employment
units that have fewer than five full-time employees.

\(h\) *Definitions*. For the purposes of this Rule:

\(1\) a full-time employee is a permanent employee whose regular work
schedule is 30 hours per week or more. A part-time employee is a
permanent employee whose regular work schedule is less than 30 hours per
week.

\(2\) a station employment unit is a station or a group of commonly
owned stations in the same market that share at least one employee.

\(i\) *Enforcement.* The following provisions apply to employment
activity concerning full-time positions at each broadcast station
employment unit (defined in this part) employing five or more persons in
full-time positions, except where noted.

\(1\) Each broadcast station shall file with the Commission a Statement
of Compliance (FCC Form 397) stating whether the station has complied
with the outreach provisions of the broadcast EEO Rule, § 73.2080,
during the two-year period prior to the date the station files the
Statement. Before filing the Statement, stations shall review their
recruitment activity during the two-year period along with requirements
of the EEO Rule and determine whether they have been in compliance with
the EEO Rule during the relevant period. The Statement of Compliance
shall also report any change in the station's recruitment election
pursuant to paragraph (e) hereof. All broadcast stations, including
those that are part of an employment unit with fewer than five full-time
employees, shall file a Broadcast Equal Employment Opportunity Program
Report (Form 396) with their renewal application. As with Form 397,
stations shall indicate on Form 396 whether they have complied with the
Broadcast EEO Rule. In addition, stations shall provide a narrative
statement demonstrating how their recruitment efforts achieved broad and
inclusive outreach during the two years prior to filing the Form 396.
Stations should also include in Form 396 any change in recruitment
election pursuant to paragraph (e) hereof. If the station believes it
was not or may not have been in compliance, it shall submit an
appropriate explanation on Form 396 or 397, as applicable. The Statement
of Compliance (Form 397) is filed every second, fourth and sixth year of
the license term, on the anniversary of the date the station is due to
file its application for renewal of license. Form 396 is filed on the
date the station is due to file its application for renewal of license.
If a broadcast licensee acquires a station pursuant to FCC Form 314 or
FCC Form 315 during the period that is to form the basis for the
Statement of Compliance or Form 396, its Statement should be based on
the licensee's EEO recruitment activity during the period starting with
the date it acquired the station. Stations are required to maintain a
copy of their Statement of Compliance and Form 396 in the station's
public file in accordance with the provisions of §§ 73.3526 and 73.3527.

\(2\) On the date a station is due to file for renewal of license, as
part of Form 396, it shall file with the Commission an EEO public file
report concerning recruitment activity during the 12-month period
preceding the filing date. The required contents of the public file
report are described in paragraphs (c)(6) or (d)(2) of this Rule. On the
date each television station or radio station which is part of an
employment unit with more than ten full-time employees files its
Statement of Compliance (Form 397) at the mid-term point of its license
term, the station shall file, together with Form 397, an EEO public file
report concerning recruitment activity during the 12-month period prior
to filing the EEO public file report. If any broadcast licensee acquires
a station pursuant to FCC Form 314 or FCC Form 315 during the twelve
months covered by the EEO public file report, its EEO public file report
shall cover the period starting with the date it acquired the station.

\(3\) If a station is subject to a time brokerage agreement, the
licensee shall file Statements of Compliance, Forms 396, and EEO public
file reports concerning only its own recruitment activity. If a licensee
is a broker of another station or stations, the licensee-broker shall
include its recruitment activity for the brokered station(s) in
determining the bases of the Statements of Compliance, Forms 396 and the
EEO public file reports for its own station. If a licensee-broker owns
more than one station, it shall include its recruitment activity for the
brokered station in the Statements of Compliance, Forms 396, and EEO
public file reports filed for its own station that is most closely
affiliated with, and in the same market as, the brokered station. If a
licensee-broker does not own a station in the same market as the
brokered station, then it shall include its recruitment activity for the
brokered station in the Statements of Compliance, Forms 396, and EEO
public file reports filed for its own station that is geographically
closest to the brokered station.

\(4\) Broadcast stations subject to this section shall maintain records
of their recruitment activity necessary to demonstrate that they are in
compliance with the EEO Rule. Stations shall ensure that they maintain
records sufficient to verify the accuracy of information provided in
Statements of Compliance, Forms 396, and EEO public file reports. To
determine compliance with the EEO Rule, the Commission may conduct
inquiries of licensees at random or if it has evidence of a possible
violation of the EEO Rule. In addition, the Commission will conduct
random audits. Specifically, each year approximately five percent of all
licensees in the television and radio services will be randomly selected
for audit, ensuring that, even though the number of radio licensees is
significantly larger than television licensees, both services are
represented in the audit process. Upon request, stations shall make
records available to the Commission for its review.

\(5\) The public may file complaints throughout the license term based
on a station's Statement of Compliance or the contents of a station's
public file. Provisions concerning filing, withdrawing, or non-filing of
informal objections or petitions to deny license renewal, assignment, or
transfer applications are delineated in §§ 73.3584 and 73.3587-3589 of
the Commission's Rules.

\(j\) *Sanctions and Remedies*. The Commission may issue appropriate
sanctions and remedies for any violation of this Rule.

Section 73.3526 is revised by amending paragraph (e)(7) to read as
follows:

**§ 73.3526 Local public inspection file of commercial stations.**

**\* \* \* \* \***

\(e\) **\* \* \***

\(7\) *Equal Employment Opportunity file.* Such information as is
required by § 73.2080 to be kept in the public inspection file. These
materials shall be retained until final action has been taken on the
station's next license renewal application.

\* \* \* \* \*

Section 73.3527 is revised by amending paragraph (e)(6) to read as
follows:

**§ 73.3527 Local public inspection file of noncommercial educational
stations.**

**\* \* \* \* \***

\(e\) **\* \* \***

\(6\) *Equal Employment Opportunity file.* Such information as is
required by § 73.2080 to be kept in the public inspection file. These
materials shall be retained until final action has been taken on the
station's next license renewal application.

\* \* \* \* \*

**III. Part 76 of Chapter 1 of the Code of Federal Regulations is
amended as follows:**

**Subpart E \-- Equal Employment Opportunity Requirements**

Section 76.75 is revised by amending introductory text of Section 76.75,
paragraphs (b), (c) and (f) and adding paragraphs (g), (h), (i), (j) and
(k):

**§ 76.75 Specific EEO program requirements.**

Under the terms of its program, an employment unit must:

\*\*\*\*\*

\(b\) Establish, maintain and carry out a positive continuing program of
outreach activities designed to ensure equal opportunity and
nondiscrimination in employment. The following activities shall be
undertaken by each employment unit:

\(1\) Recruit for every job vacancy in its operation. A job filled by an
internal promotion is not considered a vacancy for which recruitment is
necessary. Nothing in this section shall be interpreted to require a
cable entity to grant preferential treatment to any individual or group
based on race, national origin, color, religion, age, or gender.

\(i\) An employment unit shall use recruitment sources for each vacancy
sufficient in its reasonable, good faith judgment to widely disseminate
information concerning the vacancy.

\(ii\) In addition to using such recruitment sources, a cable employment
unit shall provide notification of each vacancy to any organization that
distributes information about employment opportunities to job seekers or
refers job seekers to employers, upon request by such organization. To
be entitled to notice of vacancies, the requesting organization must
provide the cable employment unit with its name, mailing address, e-mail
address (if applicable), telephone number, and contact person, and
identify the category or categories of vacancies of which it requests
notice. (An organization may request notice of all vacancies).

\(2\) Engage in at least two (if the unit has more than ten full-time
employees) or one (if the unit has six to ten full-time employees) of
the following initiatives during each twelve-month period preceding the
filing of an annual employment report:

\(i\) participation in at least two job fairs by unit personnel who have
substantial responsibility in the making of hiring decisions;

\(ii\) hosting of at least one job fair;

\(iii\) co-sponsoring at least one job fair with organizations in the
business and professional community whose membership includes
substantial participation of women and minorities;

\(iv\) participation in at least two events sponsored by organizations
representing groups present in the community interested in cable
employment issues, including conventions, career days, workshops, and
similar activities;

\(v\) establishment of an internship program designed to assist members
of the community in acquiring skills needed for cable employment;

\(vi\) participation in job banks, internet programs, and other programs
designed to promote outreach generally (*i.e.*, that are not primarily
directed to providing notification of specific job vacancies);

\(vii\) participation in a scholarship program designed to assist
students interested in pursuing a career in cable communications;

\(viii\) establishment of training programs designed to enable unit
personnel to acquire skills that could qualify them for higher level
positions;

\(ix\) establishment of a mentoring program for unit personnel;

\(x\) participation in at least two events or programs sponsored by
educational institutions relating to career opportunities in cable
communications;

\(xi\) sponsorship of at least one event in the community designed to
inform and educate members of the public as to employment opportunities
in cable communications;

\(xii\) listing of each upper-level category opening in a job bank or
newsletter of media trade groups whose membership includes substantial
participation of women and minorities; and

\(xiii\) participation in other activities reasonably calculated by the
unit to further the goal of disseminating information as to employment
opportunities in cable communications to job candidates who might
otherwise be unaware of such opportunities.

\(c\) Retain records sufficient to document that it has satisfied the
requirements of paragraphs (b)(1) and (b)(2) of this section. Such
records, which may be maintained in an electronic format, shall be
retained for a period of seven years. Such records need not be submitted
to the Commission unless specifically requested. The following records
shall be maintained:

\(1\) Listings of all full-time job vacancies filled by the cable
employment unit, identified by job title;

\(2\) For each such vacancy, the recruitment sources utilized to fill
the vacancy (including, if applicable, organizations entitled to
notification pursuant to paragraph (b)(1)(ii) of this section, which
should be separately identified), identified by name, address, contact
person, and telephone number;

\(3\) Dated copies of all advertisements, bulletins, letters, faxes,
e-mails, or other communications announcing job vacancies;

\(4\) Documentation necessary to demonstrate performance of the
initiatives required by paragraph (b)(2) of this section, if applicable,
including information sufficient to fully disclose the nature of the
initiative and the scope of the unit's participation, including the unit
personnel involved;

\(5\) The total number of interviewees for each vacancy and the referral
sources for each interviewee; and

\(6\) The date each vacancy was filled and the recruitment source that
referred the hiree.

\* \* \* \* \*

\(f\) A cable entity may elect not to utilize the provisions of
paragraph (b)(1)(ii) (notification to requesting community groups) and
(b)(2) (menu options) hereof, provided that it complies with the
following alternative recruitment requirements:

\(1\) The employment unit shall maintain records as required by
paragraph (c)(1) through (3) hereof and shall maintain, in lieu of the
records required by paragraph (c)(4) through (6) hereof, data reflecting
the recruitment source, gender, and racial and/or ethnic status of
applicants for each full-time job vacancy filled by the employment unit;

\(2\) The employment unit shall place annually in its public file
maintained pursuant to § 76.1702 the information specified in §
76.1702(b)(1) and (2) and, in lieu of the information required by §
76.1702(b)(3) through (5), data reflecting, for each recruitment source
utilized for any full-time vacancy during the preceding year, the total
number of applicants generated by that source, the number of applicants
who were female, and the number of applicants who were minority,
identified by the applicable racial and/or ethnic group with which each
applicant is associated.

\(3\) Cable employment units electing to proceed under this paragraph
shall otherwise comply with the requirements specified in paragraph (b)
hereof.

\(g\) A cable entity shall analyze its recruitment program on an ongoing
basis to ensure that it is effective in achieving broad outreach, and
address any problems found as a result of its analysis.

\(h\) Within forty-five days of the effective date of this Rule, each
cable employment unit with six or more fulltime employees shall elect
whether it wishes to utilize the recruitment procedures specified in
paragraph (b) or the alternate recruitment procedures specified in
paragraph (f) and shall file with the Commission a statement indicating
the election which shall also be placed in the public inspection file
maintained pursuant to § 76.1702. An employment unit may change its
election annually at the time of the filing of the FCC Form 395-A or FCC
Form 395-M. If the employment unit wishes to change its election, it
shall so state in its FCC Form 395-A or FCC Form 395-M. A cable
employment unit may also change its election at the time of a
substantial change in its ownership by placing a statement of its new
election in the public inspection file.

\(i\) Analyze on an ongoing basis its efforts to recruit, hire, promote
and use services without discrimination on the basis of race, national
origin, color, religion, age, or sex and explain any difficulties
encountered in implementing its equal employment opportunity program.
For example, this requirement may be met by:

\(1\) Where union agreements exist, cooperating with the union or unions
in the development of programs to assure all persons equal opportunity
for employment, and including an effective nondiscrimination clause in
new or renegotiated union agreements;

\(2\) Reviewing seniority practices to ensure that such practices are
nondiscriminatory;

\(3\) Examining rates of pay and fringe benefits for employees having
the same duties, and eliminating any inequities based upon race,
national origin, color, religion, age, or sex discrimination;

\(4\) Evaluating the recruitment program to ensure that it is effective
in achieving a broad outreach to potential applicants.

\(5\) Utilizing media for recruitment purposes in a manner that will
contain no indication, either explicit or implicit, of a preference for
one race, national origin, color, religion, age, or sex over another;
and

\(6\) Avoiding the use of selection techniques or tests that have the
effect of discriminating against qualified minority groups or women.

\(j\) Cable entities shall substantially comply with paragraph (b)(1)(i)
of this section in connection with hires for part-time positions. The
remaining provisions of this section are not otherwise applicable to
hires for part-time positions but are applicable only to full-time
positions, defined as requiring a regular work schedule of 30 or more
hours per week.

\(k\) The provisions of paragraphs (b)(1)(ii), (b)(2), (c), (f) and (g)
of this section shall not apply to cable employment units that have
fewer than six full-time employees.

Section 76.77 is revised by amending paragraphs (a), (b), and (c), and
adding paragraphs (e), (f), and (g).

**§ 76.77 Reporting requirements and enforcement.**

\(a\) *Annual employment reports.* Employment data on the annual
employment report required by §76.1802 shall reflect the figures from
any one payroll period in July, August, or September of the year during
which the report is filed. Unless instructed otherwise by the
Commission, the same payroll period shall be used for each successive
annual employment report. Employment units shall also provide EEO
recruitment information covering a 12-month period, as requested and
explained on the form. If a cable entity acquires a unit during the
twelve months covered by the annual employment report, the recruitment
activity in the report shall cover the period starting with the date the
entity acquired the unit.

\(b\) *Certification of Compliance.* The Commission will use the
recruitment information submitted on a unit's annual employment report
to determine whether the unit is in compliance with the provisions of
this subpart. Employment profile statistics provided about race,
ethnicity, and gender of employees will not be used to determine
compliance with the EEO rules. Units found to be in compliance with
these rules will receive a Certificate of Compliance. Units found not to
be in compliance will receive notice that they are not certified for a
given year.

\(c\) *Investigations.* The Commission will investigate each unit at
least once every five years. Employment units are required to submit
supplemental investigation information with their regular annual
employment reports in the years they are investigated. If an entity
acquires a unit during the period covered by the supplemental
investigation, the information submitted by the unit as part of the
investigation shall cover the period starting with the date the operator
acquired the unit. The supplemental investigation information shall
include a copy of the unit's EEO public file report for the preceding
year.

\* \* \* \* \*

\(e\) *Records and inquiries.* Employment units subject to this subpart
shall maintain records of their recruitment activity in accordance with
§76.75 to demonstrate whether they are in compliance with the EEO rules.
Units shall ensure that they maintain records sufficient to verify the
accuracy of information provided in their annual employment reports,
supplemental investigation responses, and in the EEO program information
required by §76.1702 to be kept in a unit's public file. To determine
compliance with the EEO rules, the Commission may conduct inquiries of
employment units at random or if the Commission has evidence of a
possible violation of the EEO rules. Upon request, employment units
shall make records available to the Commission for its review.

\(f\) *Public complaints.* The public may file complaints based on
annual employment reports, supplemental investigation information, or
the contents of a unit's public file.

\(g\) *Sanctions and remedies.* The Commission may issue appropriate
sanctions and remedies for any violation of the EEO rules.

Section 76.79 is revised by amending the Note to read as follows:

**§ 76.79 Records available for public inspection.**

\* \* \* \* \*

NOTE: Cable operators must also comply with the public file requirements
of §76.1702.

Section 76.1702 is revised to read as follows:

**§ 76.1702 Equal employment opportunity.**

\(a\) Every employment unit with six or more full-time employees shall
maintain for public inspection a file containing copies of all annual
employment reports filed with the Commission pursuant to §76.77 and the
equal employment opportunity program information described in paragraph
(b) or (c) of this section. These materials shall be placed in the
unit's public inspection file annually by the date that the unit's
annual employment report is due to be filed and shall be retained for a
period of five years. The public inspection file should also contain the
election information required by § 76.75 (h), insofar as it is not
included in the entity's annual employment report. The file shall be
maintained at the central office and at every location with six or more
full-time employees. A headquarters employment unit file and a file
containing a consolidated set of all documents pertaining to the other
employment units of a multiple cable operator shall be maintained at the
central office of the headquarters employment unit. The cable entity
shall provide reasonable accommodation at these locations for
undisturbed inspection of its equal employment opportunity records by
members of the public during regular business hours.

\(b\) The following equal employment opportunity program information
shall be included annually in the unit's public file, and on the unit's
web site, if it has one, at the time of the filing of its FCC Form 395-A
or FCC Form 395-M, except as indicated in paragraph (c) hereof:

\(1\) A list of all full-time vacancies filled by the cable employment
unit during the preceding year, identified by job title;

\(2\) For each such vacancy, the recruitment source(s) utilized to fill
the vacancy (including, if applicable, organizations entitled to
notification pursuant to §76.75(b)(1)(ii) of this section, which should
be separately identified), identified by name, address, contact person
and telephone number;

\(3\) The recruitment source that referred the hiree for each full-time
vacancy during the preceding year;

\(4\) Data reflecting the the total number of persons interviewed for
full-time vacancies during the preceding year and the total number of
interviewees referred by each recruitment source utilized in connection
with such vacancies; and

\(5\) A list and brief description of the initiatives undertaken
pursuant to §76.75(b)(2) during the preceding year, if applicable.

\(c\) An entity that elects to utilize the alternative recruitment
procedure pursuant to §76.75(f) shall annually include in the public
inspection file the information required therein.

Section 76.1802 is revised to read as follows:

**§ 76.1802 Equal employment opportunity**.

Each employment unit with six or more full-time employees shall file an
annual employment report on FCC Form 395-A (if cable operator or SMATV)
or Form 395-M (if MVPD) with the Commission on or before September 30 of
each year, in accordance with §76.77.

**APPENDIX D**

> **FORMS**

**[SEPARATE STATEMENT OF CHAIRMAN WILLIAM E. KENNARD]{.underline}**

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

Today we adopt EEO rules for the twenty-first century.

It is very appropriate that we adopt these rules in a week that we began
by honoring the life and legacy of Dr. Martin Luther King, Jr.

These rules help further Dr. King's dream of a colorblind society. While
many of us share this dream, we are not there yet. If we were there, we
would not be having a national dialogue about the virtual absence of
minorities in prime time television.

The dream will not be realized until women and minorities have an equal
opportunity both in front of the camera and behind it, as well as in
boardrooms and executive suites.

This order advances the twin goals of prohibiting discrimination in
hiring and promoting diversity on the public's airwaves.

The only good approach to discrimination is zero tolerance. I know many
broadcasters and cable operators share this approach. I commend them for
their efforts and thank them for their support.

But I think it is no mere coincidence that the adoption of EEO rules in
1969 was followed by a steady and very substantial increase among
broadcasters in the percentage of upper-level jobs held by minorities
and women. The EEO rules before us will continue the Commission's proud
tradition of ensuring that broadcasters reach out to all segments of
their community when it comes to seeking new hires.

These rules also reaffirm the Commission's long-standing obligation and
commitment to ensuring that the public airwaves reflect the diversity of
the public itself. The goals of diversity and non-discrimination must be
pursued in front of the TV camera as well as behind it.

These rules reflect a common sense manner of pursuing these important
goals. These rules also are carefully crafted to follow the letter and
the spirit of the court's opinion in the [Lutheran Church]{.underline}
case.

Broadcasters and cable entities are thus given substantial flexibility
to mold an outreach program that fits their individual circumstances and
communities. What works in one community might not be effective in
another.

But in all communities the outreach must be real, it must be effective,
and it must serve the public by being all-inclusive.

I know that there are many who wanted us to go further, or to conduct
studies to document the current status of minority hiring and diversity
on the air and take any appropriate remedial action.

These parties should note that we are keeping the docket in this
proceeding open, so that any relevant studies and information can be
filed with us and called to our attention in a specific docketed
proceeding.

And while I am pleased that we are moving ahead, I had hoped we could do
more.

For example, under the order as proposed, broadcasters who elect Option
B must track race and gender data of their *applicants*, but not of
those who actually *interview* for the job. Simply tracking who
*applies* for a job only gives you part of the picture, because it does
not show whether the outreach program is producing qualified applicants
from all segments of the community. Obviously it is up to the
broadcaster to determine who is qualified, but it is only after the
applicant pool is whittled down to a *qualified applicant* pool can the
effectiveness of the outreach be determined.

In this respect, we should have gone further.

Separate Statement of Commissioner Susan Ness

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

We make clear today that discrimination based on race, ethnicity or
gender is antithetical to operating a broadcast station, cable system,
or other multichannel video programming distribution system in the
public interest. I have always advocated equal opportunity and believe
that such efforts are critical if women and minorities are to be able to
seek and obtain employment, training, promotion -- and ownership \-- in
the mass media and telecommunications industries. The rules we adopt
today further this important goal without affecting the ability of
broadcasters, cable systems, and other programming providers to hire the
most qualified people.

While I disagree with the Court's assessment in *Lutheran Church* that
our previous rules violated Constitutional standards, I accept its
ruling. I believe that the rules we adopt today respond to the letter
and spirit of the Court's opinion.

Significantly, the rules afford licensees flexibility to tailor their
outreach programs to the needs of the marketplace. We do not impose a
one-size-fits-all regulatory regime but rather allow licensees to select
from a long list of supplementary recruitment methods or, if they so
choose, to devise their own outreach program. Many broadcasters, for
example, have developed creative ways to reach out to minorities and
women in their communities and I believe such efforts should be
encouraged.

Outreach efforts should be effective, not symbolic. To this end, I do
not want licensees to use token gestures in meeting our requirement to
"widely disseminate" job listings. Rather, licensees should deploy a
variety of methods, including postings on the Internet, advertisements
in newspapers, and other notices in their effort to widely circulate
information about job openings. Licensees should not rely on only one
vehicle for disseminating job vacancy information to the population but
should structure their efforts to maximize outreach throughout the
community.

I strongly encourage broadcast associations to develop and publicize
Internet-based job banks to aggregate and make available as many
listings as possible. Such job banks eventually will facilitate a job
search, not only in local communities but throughout any given state
and, ultimately, throughout the Nation. Before such a tool can be
effective, however, we must have a way of ensuring that listings are
readily accessible to those who cannot afford a home computer with an
Internet connection. Otherwise, our efforts to increase outreach may
have the unintended consequence of reinforcing the digital divide.

Finally, I applaud the voluntary efforts by broadcasters and the cable
industry to devise training programs that will enhance prospects for
women and minorities to gain employment, rise to senior management
posts, and position themselves for future ownership opportunities. Our
EEO requirements should not represent the upper limit in this area, and
voluntary efforts by employers are critical to achieving true workplace
diversity.

**STATEMENT OF COMMISSIONER MICHAEL K. POWELL**

*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*[^411] 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]{.underline} 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]{.underline}, 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 (2^nd^ 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.[^412] 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.[^413] 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.[^414] 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]{.underline}, 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.[^415] I am dubious
of its validity and deeply worried that the courts have begun to view
such rationale with dire skepticism.[^416] 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.

# STATEMENT OF {#statement-of .unnumbered}

# COMMISSIONER GLORIA TRISTANI**,** DISSENTING IN PART {#commissioner-gloria-tristani-dissenting-in-part .unnumbered}

#   {#section-1 .unnumbered}

*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.[^417] 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.
[^418] 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:

###  {#section-2 .unnumbered}

### 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.'[^419] {#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. .unnumbered}

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."[^420]

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.

**In the Matter of Review of the Commission's Broadcast and Cable Equal
Employment Opportunity Rules and Policies and Termination of the EEO
Streamlining Proceeding, MM Dockets Nos. 98-204, 96-16.**

## **Dissenting Statement of Commissioner Harold W. Furchtgott-Roth** {#dissenting-statement-of-commissioner-harold-w.-furchtgott-roth .unnumbered}

In *Lutheran Church-Missouri Synod v. FCC*, 141 F.3d 344 (1998), the
United States Court of Appeals for the D.C. Circuit ruled that this
Commission's Equal Employment Opportunity regulations denied the equal
protection of the laws to persons seeking employment at broadcast
stations. Those regulations also made broadcasters, the Court said,
"involuntary participant\[s\] in a discriminatory scheme." *Id.* at 350.
To have established and enforced a program that required regulatees to
engage in the most historically odious sort of discrimination against
potential employees \-- discrimination based on race \-- was a most
grievous offense.

After careful consideration, I am not persuaded that the Commission's
efforts to conform those regulations to the requirements of Equal
Protection are adequate. Unfortunately, the revised regulations bear
some of the same characteristics that led the Court of Appeals to find
the original rules unconstitutional. Because these rules are not clearly
constitutional, I cannot support their adoption. Moreover, I have doubts
about significant parts of the Commission's theory of statutory
authority for the regulations. Accordingly, I cannot support adoption of
this Report & Order, however well-intentioned it might be.

# The Regulations Are Susceptible To Reasonable Constitutional Doubt

The Order's conclusion as to the constitutionality of the outreach rules
appears to hinge on the assertion that they are wholly race-neutral and
thus not subject to strict scrutiny under *Adarand Constructors, Inc. v.
Pena*, 515 U.S. 200 (1995). *See, e.g.,* Report & Order at para. 210
(arguing that EEO requirements "do not raise equal protection
concerns"); *id.* at para. 217 (contending that outreach requirement is
"race-neutral and . . . not subject to strict scrutiny" and "raises no
equal protection concerns"); *id*. at 218 (asserting that commenters'
arguments against race- and gender-targeted recruiting "are moot"). For
the reasons that follow, I must question whether this is correct. [^421]

#  {#section-3 .unnumbered}

# *A*. *[The Regulatory Scheme Is Not Neutral With Respect To Race And Gender]{.underline}* {#a.-the-regulatory-scheme-is-not-neutral-with-respect-to-race-and-gender .unnumbered}

As a factual matter, the instant rules go further than simply requiring
outreach to all people, without regard to race. In several places, the
regulations expressly employ race-based classifications and require
broadcasters to so classify persons for reporting purposes. Moreover,
the Commission's enforcement plan undermines the asserted
race-neutrality of the outreach requirement. Finally, the impact of the
overall regulatory scheme on the behavior of broadcasters reaches all
the way to hiring, not just recruiting, decisions; the scheme subtly
impels broadcasters to make all such decisions with an eye toward
achieving some level of racial representation, even "balance," of
employees and applicants.

Under the specific EEO program requirements of Track A, a station
potentially must "co-sponsor\[\] at least one job fair with
organizations in the business and professional community whose
membership includes substantial participation of women and minorities."
47 CFR section 73.2080(c)(2)(iii). A station could also be required to
"list\[\] . . . each upper-level category opening in a job bank or
newsletter of media trade groups whose membership includes substantial
participation of women and minorities." *Id.* section (c)(2)(xii).
Although the Commission discontinues its prior practice of requiring the
use of minority- and women-specific referral sources \-- suggesting that
this action insulates the plan from being described as
"targeted"outreach, *see* Report & Order at para. 218 \-- these new
requirements do essentially the same thing. Broadcasters no longer have
to use minority- and women-specific groups as referral sources, *cf.
Lutheran Church*, 141 F.3d at 351 (noting minority-specific referral
source rule), but the menu of options includes a requirement that they
sponsor job fairs and list jobs with such groups.

Pursuant to the alternative recruitment requirements of Track B, a
station must maintain "data reflecting the recruitment source, gender,
and racial and/or ethnic status of applicants for each full-time job
vacancy filled" by the station. 47 CFR section 73.2080(d)(1). In
addition, a station is required to include in its public file report
"data reflecting, for each recruitment source utilized for any full-time
vacancy. . ., the total number of applicants generated by that source,
the number of applicants who were female, and the number of applicants
who were minority, identified by the applicable racial and/or ethnic
group with which each applicant is associated." *Id.* section (d)(2).

Finally, per the rule reinstated today, all stations must file FCC Form
395-B, the Annual Employment Report. Section V of that document requires
the charting of employees by job category and by male and female
groupings subdivided into "White (not Hispanic)," "Black (not
Hispanic)," "Hispanic," "Asian or Pacific Islander," and "American
Indian, Alaskan native." *See* Report & Order, Appendix D. A rule
requiring broadcasters to place people in boxes on a chart with race and
gender categories on its face uses race-based classifications.

Although the actual mandate that stations widely disseminate vacancy
information makes no reference to race or gender, *see* 47 CFR
73.2080(c)(1)(i), the overall scheme adopted today pressures
broadcasters to target potential applicants and possibly even employees
on the basis of race and gender -- whether proceeding under Track A or
Track B.

The "self-assessment" rule, which applies under both Tracks, requires a
station to "\[a\]nalyze its recruitment program on an ongoing basis to
ensure that it is effective in achieving broad outreach to potential
applicants, and address any problems found as a result of its analysis."
*Id.* section (c)(3). Also, in order to have its license renewed, a
station must have complied with all substantive EEO requirements, such
as the outreach rules, during the prior license period. The FCC conducts
compliance review at the time of license renewal.

By what measure does one test the "effectiveness" of outreach? According
to the Order, one gauges the adequacy of outreach efforts by the number
of women and minorities in applicant pools, and even in employment
profiles.

Specifically, the Order provides that in order to "demonstrate" to the
Commission that an outreach program under Track B "is inclusive, *i.e.,*
that it widely disseminates job vacancies," a station must "collect data
tracking the recruitment sources, gender, and race/ethnicity of its
applicant pools." Report & Order at para. 104. This information will
allow the broadcaster and the Commission to "evaluate whether the
program is effective." *Id*. But "\[i\]f the data collected does not
confirm that notifications are reaching the entire community, \[the
Commission\] expects a broadcaster to modify its program as warranted so
that it is more inclusive." *Id.*[^422]

The Commission noisily disclaims that proportionality with the local
labor force will be the exclusive test for adequacy of applicant pool
composition. At the same time, it admits that it will have to rely, at
least in part, on the numerical representation of minorities and women
in applicant pools in order to assess compliance with the outreach rule.
*Id.* at para. 120 (denying proportionality requirement for applicant
pools but stating that "few or no" minorities or women would indicate
inadequate "inclusiveness").

Clearly, then, applicant pools must achieve some numerical level of
minority and women applicants in order for a station's outreach program
to be deemed EEO compliant. The Commission declines to say, however,
just what that composition is. Thus, the Commission makes plain its
intent to use numerical data on the race and gender of applicants to
evaluate outreach efforts \-- and even vows to require heightened
efforts of broadcasters' whose data is inadequate -- but is strikingly
silent on just how many minority and women applicants are enough.
Eventually, the Mass Media Bureau will be forced to come up with some
kind of processing guidelines for review of outreach programs.

Once one focuses on race and gender statistics, however, it is difficult
to come up with anything other than proportionality, or some derivative
of proportionality, as a calibrator of adequacy. The only other number
with significance I can identify would be zero; one could say that the
absence of minorities and women in applicant pools would establish
noncompliance. Beyond zero, however, it is hard to say that any one
number is materially more meaningful than another. Conversely, whatever
the Commission requires to demonstrate "effective" outreach, it surely
could not require *more* than proportionality.

Given the lack of any other guidance as to compliance with the outreach
rule, rational broadcasters wary of regulatory trouble will strive for
some showing of rough proportionality in their applicant pools. At the
very least, they will strive to have at least one woman or minority in
every pool; while this is not a proportionality requirement, it is a
fixed number or quota. *Cf. Lutheran Church*, 141 F.3d at 390 (reasoning
that "the fact that the Commission looks at more than 'numbers' does not
mean numbers are insignificant" since "a station would be flatly
imprudent to ignore any of the factors it knows may trigger intense
review" and "can assume that a hard-edged factor like statistics is
bound to be one of the more noticed . . . criteria").

The fact that the standard by which Track B outreach programs, neutral
on their face, will be judged is by counting minority and female
applicants that wind up at the station makes it hard if not impossible
to call this regulatory plan truly "race-neutral." The Commission has
built into the back end of its policy what it shrewdly omitted from the
face of the dissemination rule -- that is, a requirement of some minimum
(though vaguely defined) numerical representation of minorities and
women in applicant pools.[^423] *Cf. Lutheran Church*, 141 F.3d at 390
(reasoning that "the Commission has used enforcement to harden the
suggestion" in its regulations).

The Commission also makes clear that the records broadcasters must keep
under Track A regarding the referral sources of ultimate hires, *see* 47
C.F.R. section 73.2080(c)(5)(ii), (v)-(vi), are "designed to provide a
starting point for a broadcaster to analyze the success of its
recruitment efforts." *Id*. at para. 118. But "if it appears that,
despite a broadcaster's outreach efforts, an excessive number of hires
or interviewees are coming from inside, 'word-of-mouth' recruitment
sources, we will expect the broadcaster to consider whether its
recruitment efforts are achieving a sufficiently broad outreach." *Id*;
*see also id.* at para. 115 (stating that "\[d\]ata as to the
recruitment sources of the broadcasters\' interviewees and hirees . . .
will be one source of information concerning a broadcaster's EEO efforts
that we may, as warranted, utilize in determining whether a broadcaster
has demonstrated compliance with our EEO rule").

Clearly, then, the outreach regulations do *not* stop at the line
between recruiting and hiring, as the Commission repeatedly asserts. As
I read the plain language of the Report and Order cited above, a
broadcaster could engage in every single act of outreach required under
Track A but still be deemed noncompliant for failing to hire from
referral sources with sufficient frequency, instead hiring too many
people by word of mouth. Thus it is not just outreach that is required
for compliance. Instead, broadcasters operating under Track A must avoid
hiring "through an insular recruitment and hiring process," thereby
"replicat\[ing\]" a "homogenous workforce" in which "minorities and
women are poorly represented." *Id.*. at para. 3.[^424] And the data on
referral sources of employees will be used to police those hiring
decisions.

Thus, under Track A, broadcasters who are not discriminating against
anyone in the hiring process -- indeed, who have never discriminated
against anyone \-- are *not* free to decide to hire whoever they want,
as the Commission asserts. The Report & Order makes clear that they are
expected to hire a certain amount of employees from referral sources.
These rules are clearly aimed at a broadcaster's employment decisions
and are meant to affect the racial composition of his staff by
preventing the "replication" of "homogenous" staffs. I do not see how
this language can be squared with the Commission's repeated claim that
it has no intention of regulating hiring or injecting race and gender
considerations into such decisions, and that its rules create no
preferential effects whatsoever in hiring. [^425]

Another measure of the efficacy of outreach under either Track A or B,
according to the Order, is station employment profiles collected on Form
395. In explaining why it collects this expressly race- and gender-based
hiring data, the Commission states that the data is necessary "in order
to assess . . . the effectiveness of the new rules in achieving our
objective\[\] of inclusive outreach." Report & Order at para. 164. The
Commission further explains that "an increase in the number of women and
minorities employed in the broadcast . . . industr\[y\] would indicate
that our EEO requirements are effective in ensuring outreach." *Id.* If
these employment numbers do not prove satisfactory to the Commission, it
"will not hesitate to propose changes to \[the\] EEO rules if industry
trends suggest that \[they\] are not effective." *Id*.

In other words, if broadcasters do not achieve some minimum level of
minority and female employment, the Commission will impose added
regulation -- and thus greater costs \-- upon them. I do not think it
can be denied that an express threat of greater industry regulation
creates a strong incentive to achieve the Commission's stated desire.
Again, left without any clear idea as to what those employment profiles
should look like, the rational broadcaster -- or industry as a whole --
will probably set its sights on something approaching proportionality
and, if not that, at least some minimum number of minorities and women.

Finally, the Commission takes the highly irregular step of keeping open
the docket in this proceeding, notwithstanding the adoption of final
rules and regulations. *See* *id.* at 229. While it does not "at this
time" pursue a direct remedial approach to the employment of minorities
and women, the Commission will permit the submission of information
"germane" to such regulation, such as a national employment disparity
study. *Id.* The Commission "will consider any \[such\] submissions" and
"determine \[whether\] action is appropriate at a later date." This
action is "to facilitate any additional proceedings upon further Order,"
*id.* at para. 238, and to \"facilitate the submission of information
relevant to employment disparities," FCC Press Release on EEO
Regulations (Jan. 20, 2000).

Again, this none too subtly suggests that if subsequent studies show a
"disparity" in the employment of minorities and women \-- not of
broadcasters' failure to make job information widely available to any
and all persons \-- the Commission will take further regulatory action.
Indeed, by keeping the docket open in this proceeding, the Commission
actively invites such submissions and keeps the possibility of further
rulemaking very much alive; no future Commission need obtain a majority
vote in order to initiate a rulemaking on this matter. Had the docket
simply been closed, as normally occurs when final rules are adopted,
nothing would have prevented parties from filing any studies they wish
with the Commission. But by leaving the docket conspicuously open, the
Commission keeps the motor on this regulatory vehicle running, allowing
for immediate reentry onto the regulatory fast track. The drone of that
motor is more than background noise for broadcasters; it is a constant
reminder of an express threat of more regulation.

In short, the Report & Order attempts to walk an excruciatingly fine
constitutional line. It deletes the requirement that broadcasters use
minority- and women-specific referral sources, but replaces that with
other race- and gender-specific recruiting requirements, such as the job
fair and job listing rules. And although the Commission does not use
race or gender classifications in the text of the outreach requirement,
it makes clear that in enforcing the regulations it will expressly
consider the race and gender composition of applicant pools in order to
assess the "effectiveness" of a station's outreach under Track B. Under
Track A, the Commission intends to track hiring from referral sources
and indicates that a broadcaster's failure to hire from referral sources
with sufficient frequency will present a regulatory problem. The
Commission has also made clear that race- and gender-based employment
data will be used to assess the effectiveness of the rules under both
Track A and B, promising more regulation and less discretion for
broadcasters if the current regime proves to achieve results that are,
in its opinion, inadequate. Finally, the Commission declines to close
this proceeding, inviting the filing of information on employment
"disparities" for minorities and women.

Does this system influence or encourage hiring based on race? A
reviewing court very well might find that it does. Given the realities
of the overall scheme and the Commission's self-avowed purpose of
influencing the racial composition of broadcast employment ranks, I for
one see a real risk that these regulations and the accompanying Order
will operate to "pressure\--even if they do not explicitly direct or
require\--stations to make race-based hiring decisions." *Lutheran
Church v. FCC*, 154 F.3d at 491; *see also Community-Service
Broadcasting of Mid-America, Inc. v. FCC*, 593 F.2d 1102, 1116 (D.C.
Cir. 1978) (en banc) (discussing the "variety of *sub silentio*
pressures and 'raised eyebrow' regulation\[s\]" to which broadcast
licensees are subject and holding that facially neutral regulations can
be invalid if they increase the likelihood of self-regulation "to avoid
official pressure and regulation"); *Writers Guild of America, West v.
FCC*, 423 F. Supp. 1064, 1098, 1105, 1117 (C.D. Cal. 1976) (finding that
informal "jawboning" by agency officials is judicially reviewable),
*vacated and remanded on jurisdictional grounds sub nom.,* *Writers
Guild of America v. ABC*, 609 F.2d 355 (9^th^ Cir. 1979) (agreeing that
"the use of these techniques by the FCC presents serious issues
involving the Constitution, the Communications Act, and the APA"),
*cert. Denied*, 449 U.S. 824 (1980). Indeed, one of the stated goals of
the regulations is to affect the racial design of the employment force
at broadcast stations, as well as the racial composition of station
owners, in order to promote "diversity of programming." *See, e.g,*
Report & Order at para. 59 (asserting nexus between employment and
programming diversity).

Even if the regulations do not influence or encourage *hiring* based on
race, they certainly impel *recruiting* based on race. This is due to
the use of applicant pool data to evaluate the adequacy of outreach
programs, as explained above. The Commission has not eliminated
race-based decisionmaking under the EEO regulations, rather it has moved
such decsionmaking one step back in the employment process.

The Order opines that such decisionmaking is harmless, however, because
no one is injured when the pool of applicants is merely expanded. This
view goes more to standing than to the merits of the Equal Protection
issue. In any event, the substantive problem with this view is that it
assumes an infinitely expandable pool of recruits, applicants, and
interviewees. That assumption, while not without rhetorical appeal, is
open to doubt.

At some point, a broadcast station, just like any other business, must
draw the line on how many people it can afford, in terms of time and
money, to recruit and interview. And when a station draws that line,
these regulations might cause it to leave candidates not of the
Commission's preferred race or gender standing on the other side. Those
persons who are not selected as recruits or interviewees stand less of a
chance of getting the job, of course. Thus, a person may be denied an
opportunity to compete for the job on the same basis as all others --
that is, they may be passed over for an interview or not recruited for a
position based on their race. In this way, they have been harmed by a
governmental scheme that incents the broadcaster, in order to achieve an
acceptable applicant pool composition, to prefer one person as a recruit
because of their race. *See Texas v. Lesage*, Sup. Ct. Slip Op. 98-1111
(Nov. 29, 1999) ("\[A\] plaintiff who challenges an ongoing
race-conscious program and seeks forward-looking relief need not
affirmatively establish that he would receive the benefit in question if
race were not considered. The relevant injury in such cases is 'the
inability to compete on an equal footing.'") (quoting *Northeastern Fla.
Chapter, Associated Gen, Contractors of America v. Jacksonville*, 508
U.S. 656, 667 (1993)); *see also* Comments of Institute for Justice at
4-5 (explaining harm caused by outreach rule).

For the foregoing reasons, I think the Commission's outreach rules are
not merely cognizant of race and gender in the way that, for example,
prohibitions on discrimination are. Instead, they classify people based
on their race and gender, require broadcasters to do so, and encourage
broadcasters to prefer people of a particular race or gender over others
as recruits, and even as employees. This regulatory scheme is not
clearly race- or gender-neutral with respect to the distribution of
benefits in the employment process.

In contrast to the programs established in the Order, the proposal
submitted by the Broadcast Executive Directors Association (BEDA)
provides an example of a race- and gender-neutral outreach plan that
would present no Equal Protection problem. *See* Report & Order at para.
82. In its final proposal, BEDA suggested that stations, among other
things: post notices of full-time vacancies either directly or through
its State Broadcast Association to any group that asks in writing to
receive such notification; advertise full-time vacancies over the air,
in local newspapers of general circulation, or on the internet; and, if
using the internet, promote the website on the air. Stations would not
be required to document the race and gender of applicants or
interviewees or maintain records as to the source of referrals.[^426]

These requirements effect the broad dissemination of information, and
they do so without regard to the race or gender of the recipients of
that information, job applicants, or ultimate hires. This, in my view,
is what the phrase "race-neutral" means. This, in my view, is the kind
of plan that doubtless "merely require\[s\] stations to implement
racially neutral recruiting and hiring programs," *Lutheran Church*, 141
F.3d at 351, and thus does not trigger equal protection concerns. As one
commenter succinctly put it, and as BEDA's plan shows, "broad outreach
does not necessitate race-conscious action and can easily be
accomplished through race-neutral means." Comments of Institute for
Justice at 9. The Commission, however, never explains why an
unquestionably neutral program would be inadequate to meet its stated
goals, but instead continues to insist upon the collection and use of
race and gender data and race- and gender-specific regulation. To my
mind, a program such as that put forth by BEDA would have been the wiser
constitutional course.

# *B. [The Legal Precedent for the Constitutionality of the Rules Is Weak]{.underline}* {#b.-the-legal-precedent-for-the-constitutionality-of-the-rules-is-weak .unnumbered}

Upon examination of the cases cited by the Commission as support for the
constitutionality of these regulations, that precedent appears
relatively weak. At best, the constitutionality of targeted outreach
appears to be an open question in the vast majority of federal judicial
circuits, including the D.C. Circuit. *See Lutheran Church*, 154 F.3d at
492 ("Whether the government can encourage -- or even require -- an
outreach program specifically targeted on minorities is. . . a question
we need not decide."). At worst, targeted outreach requires race-based
decisionmaking, triggering strict scrutiny under the Equal Protection
Clause.

Contrary to the assertion in the Order, it is simply not true that
"courts have consistently held that recruitment measures designed to
*expand* the applicant pool, and that do not favor anyone *in* the
applicant pool on the basis of race, are race-neutral and are not
subject strict scrutiny." Report & Order at para. 217 & n. 352.[^427] I
address *seriatim* each case cited for this proposition.[^428]

*Raso v. Lago* neither addressed nor decided the standard of review for
targeted outreach programs under the Equal Protection Clause. That case
involved the interaction of a Massachusetts law granting a preference to
former residents of Boston's "West End" for apartments in a new housing
development, federal housing regulations requiring developers to engage
in minority outreach for residents, and an extant consent decree
governing the development that required a particular racial composition
of residents. The state law preference for former "West Enders," which
was entirely race neutral, had the effect of creating a preference for
whites in the new development because most West Enders were white. HUD
felt that implementation of the state law preference directly conflicted
with its regulations as well as the consent decree, to which it was a
party. HUD thus negotiated an agreement whereby the statutory preference
for West Enders would be curtailed.

HUD's targeted outreach regulations were not the focal point of the
challenge in that case. As the Court observed, "outreach efforts are not
the real source of the plaintiffs' problem---rather, it is the partial
loss of their preference." 135 F.3d at 17 n. 8. As to the plaintiffs'
ancillary attack on the regulations themselves, the Court rejected it on
the ground that it had been "essentially abandoned on appeal." *Id.* at
17. So, to the extent that the outreach regulations were themselves
challenged, the Court did not address that claim on the merits but
instead found it waived.[^429]

*Duffy v. Wolle,* 123 F.3d 1026 (8^th^ Cir. 1997), did not uphold
targeted outreach requirements against Equal Protection attack, or
decide the applicable standard for such review, either. Instead, that
case involved a reverse discrimination hiring claim under Title VII.
Although the Court reasoned that affirmative efforts to recruit
minorities and women result in no harm to others, it did so in the
course of deciding that the existence of such a program was not enough
to support a finding that the defendant employer's asserted reason for
hiring someone other than the plaintiff was pretextual. *See* 123 F.3d
at 1038 (holding that "we \[do not\] believe that the \[defendant's\]
alleged interest in obtaining a pool of diverse applicants can support a
finding of pretext" in hiring). Because the plaintiff's other evidence
of "pretext" was also unpersuasive, the employer was not liable for
employment discrimination under Title VII. This case thus did not hold
that outreach measures are "race-neutral," regardless of group
targeting, and thus not subject to strict scrutiny.

Neither does *Ensley Branch NAACP v. Seibels*, 31 F.3d 1548 (11^th^ Cir.
1994), stand for the asserted proposition. The question presented there
was not whether the targeted outreach required by the consent decree in
that case was subject to strict scrutiny, but whether the race-based
hiring "goals" in the decree violated Equal Protection. In the course of
ruling those goals unconstitutional, the court said that the fact that
the city had engaged in "race-neutral" efforts to solve its employment
problems did not save their hiring goals under strict scrutiny. In
describing those prior efforts, the court observed that the city
"actively encouraged blacks to apply for jobs" and that "the consent
decrees themselves required strengthened recruitment of blacks and
women." Id. at 1571. Admittedly, the Court described, in *dicta*,
targeted recruiting programs as "race-neutral" in the course of
evaluating another aspect of the decrees' constitutionality. But it did
not decide the question -- as no party raised it -- whether the targeted
recruiting was itself constitutional, or what the applicable standard of
review for such a program would be.

The same is true of *Peightal v. Metropolitan Dade County*, 26 F. 3d
1545 (11^th^ Cir. 1994). Again, in the course of determining "whether a
race-conscious remedy" -- specifically, a hiring preference \-- was
"narrowly tailored to serve a compelling state interest," the Court
undertook the "initial inquiry" of asking whether the government had met
its obligation first to consider race-neutral measures. *Id.* at 1557.
As in *Seibels*, the Court characterized a recruiting program aimed at
minorities and women as "race-neutral" and concluded that the city had
therefore met its obligation to take such measures before introducing
the hiring quotas. *Id.* at 1557-1558. But no challenge was made to the
recruiting program itself, and this case therefore never held that such
programs are race-neutral for purposes of analyzing their
constitutionality under the Equal Protection Clause.

That leaves one district court decision, *Shuford v. Alabama State Board
of Education*, 897 F. Supp 1535 (M.D. Ala. 1995). Unlike the foregoing
cases, this one does analyze the constitutionality of affirmative
outreach programs. And it does reason that procedures that only expand
the applicant pool -- that are "inclusive" as opposed to "exclusive" \--
and that do not affect hiring decisions are not subject to equal
protection analysis.

By its own admission, however, the district court's reasoning "presents
a new method of looking at affirmative action." *Id*. at 1551. The court
candidly recognized not just the novelty of its analysis, but that the
analysis actually "is a deviation from general affirmative-action case
law." *Id.* at 1556. It is this portion of the opinion that the Order
cites. *See* Order at para. 24 n.4. If this is the best case that can be
cited for the Commission's legal theory of the race-neutrality of
targeted outreach, then the precedent for that theory is weak, to put it
mildly.

Of course, the above-discussed cases are from the lower federal courts.
The last word from the Supreme Court on "race-based decisionmaking" is
*Adarand Constructors, Inc. v. Pena*, 515 U.S. 200 (1995)*.* The Court
has never since suggested that the phrase "race-based decisionmaking,"
as used for purposes of Equal Protection analysis, means anything other
than what its plain terms indicate: the making of choices\
\-- whether to fire, pass over for a promotion, hire, interview, or
recruit a person \-- on account of an individual's race. Of course, the
D.C. Circuit has already expressed its skepticism that *Adarand* can be
limited to hiring decisions: "Under Title VII, courts have distinguished
between 'preliminary' and 'ultimate' employment decisions. . . . \[but\]
the Equal Protection Clause would not seem to admit such a de minimis
exception." *Lutheran Church,* 141 F.3d at 351.

### II. The Commission's Theory of Statutory Authority Is Problematic {#ii.-the-commissions-theory-of-statutory-authority-is-problematic .unnumbered}

The Commission's argument for statutory authority to regulate broadcast
employment appears to rest in large part on a ratification theory.[^430]
*See* Report & Order at para. 21. Under the cases cited by the
Commission, however, *see id.* at para. 26 & n.39, it is not the agency
practice itself that Congress blesses *post hoc,* but rather the
agency's construction of a particular statutory provision, pursuant to
which it has purportedly acted, that Congress implicitly accepts. [^431]
Thus, although section 334 is indeed an explicit legislative recognition
of the Commission's EEO practices at the time of its enactment in 1992,
there must have been some other grant of authority under which the
Commission promulgated the EEO regulations, the construction of which
Congress then ratified when it enacted section 334.

In fact, the express and exclusive provisions relied upon by the
Commission in adopting EEO rules were the "public interest" provisions
of Title III. *See* Nondiscrimination Employment Practices of Broadcast
Licensee, 13 FCC 2d 766 (1968); 18 FCC 2d 240 (1969); 23 FCC 2d 430
(1970); 44 FCC 2d 735 (1974). The Report & Order even acknowledges that
the "ratification" argument necessarily relates back to the "public
interest" parts of the Communications Act. *See* Report & Order at para.
26 (arguing that Congress has long known of the Commission's position
that "it has authority *under the public interest mandate* to adopt and
enforce EEO rules") (emphasis added).

Even if accepted as a legitimate method of statutory construction, all
that the majority's ratification theory proves is that Congress in
section 334 acquiesced in the Commission's historic reading of the
public interest language in Title III. Although it is difficult to
untangle the Commission's ratification argument from its section 334
argument, it seems that, at bottom, the Report & Order relies upon the
"public interest" standard as an ultimate source of asserted authority
for these regulations.[^432] To the degree that it does so, the Report &
Order is not on firm legal ground. And, for reasons described below,
section 309(j) does nothing to improve that situation.

A.  [Both Prongs of the Commission's "Public Interest" Standard Suffer
    From]{.underline} [Legal Flaws]{.underline}

Originally, the EEO rules were adopted in the "public interest" of
furthering the general national policy against employment
discrimination, as evidenced in Title VII of the Civil Rights Act of
1964. Later, the Commission stated that the regulations were meant to
create diversity of programming. *See* 13 FCC 2d 766. *See*
Nondiscrimination in Employment Practices (Broadcast), 60 FCC 2d 226,
229 (1976), reversed on other grounds, *Office of Communications of the
United Church of Christ v. FCC*, 560 F.2d 529 (1977). Since then, the
Commission has alternated between these goals as independent rationales
or cited them as complementary aims.

Most recently, in the *Lutheran Church* litigation, the Commission clung
solely to the diversity of programming goal, disavowing any reliance on
non-discrimination. *See* 141 F.3d at 354. Today, it takes the opposite
tack, deliberately downplaying the diversity of programming rationale.
*See* Report & Order at para. 4 (non-discrimination goals "would be
sufficient in themselves to warrant non-discrimination and outreach
requirements" but the rules "also serve an important, constructive
function in fostering greater diversity of viewpoints and programming").

Over time, and as described in detail below, each rationale has been
drawn into question by the courts as a basis for employment
discrimination rules. This, of course, explains the Commission's veering
back and forth between the Scylla and Charybdis of its "twin aims." In
the end, I am not sure that these regulations -- in so far as they
derive from the "public interest" sections of the Communication
Act\--will make it safely through the statutory strait.

> 1.The Scylla of Non-Discrimination.

As noted above, the original and exclusive policy goal of EEO
regulations was founded on a pure nondiscrimination principle. Reliance
upon the non-discrimination theory was perhaps fine, as a legal matter,
in the 1960s. But reliance upon the goal of non-discrimination pursuant
to statutory "public interest" provisions is now questionable under
Supreme Court and D.C. Circuit precedent.

In *NAACP v. Federal Power Commission*, 425 U.S. 662 (1976), the Supreme
Court held that the "public interest" provision of the Federal Power Act
did not confer statutory authority upon the Federal Power Commission to
regulate the employment practices of its regulatees. The Court stated
that its "cases have consistently held that the use of the words 'public
interest' in a regulatory statute is not a broad license to promote the
general public welfare." *Id.* at 669.

Under *NAACP v. Federal Power Commission*, then, the Commission can not
just promote the policy of nondiscrimination -- as laudable a goal as
that is -- but must promote goals with a "'direct relation,'"to the
purposes of the Communication Act, i*d.* (quoting *New York Central
Securities Corp. v United States*, 287 U.S. 12, 24-25), such as the
efficient distribution of radio spectrum.[^433] Indeed, the Supreme
Court went out of its way in that case to characterize the FCC's
employment regulations as tied to the communications policy goal of
"ensur\[ing\] that . . . licensees' programming fairly reflects the
tastes and viewpoints of minority groups," i*d*. at 670 n. 7, as opposed
to a non-discrimination goal. Likewise, in express recognition of the
import of *NAACP v. FPC*, the D.C. Circuit has described the
Commission's EEO program as regulating "the employment practices of its
licensees *only* to the extent those practices affect the obligation of
the licensee to provide programming that 'that fairly reflects the
tastes and the viewpoints of minority groups,' and to the extent those
practices raise questions about the character qualifications of
licensees." *Bilingual Bicultural Coalition on Mass Media, Inc. v. FCC*,
595 F2d 621, 628 (1977) (emphasis added). [^434]

Justifying the EEO rules as furthering an aim of nondiscrimination under
the "public interest"standard is thus clearly problematic. [^435]
Indeed, this proposition is so obvious that the *Lutheran Church* court
-- having undermined the legitimacy of the alternative rationale of
diversity of programming \-- noted the statutory authority issue *sua
sponte* and remanded the question for our consideration. *See* 141 F.3d
at 354, 356.

2.  The Charybdis of Diversity of Programming.

In view of the foregoing caselaw on statutory authority to prohibit
employment discrimination under the "public interest" standard, the
Commission might like to turn to the alternative rationale of
programming diversity, as it did in the *Lutheran Church* litigation.
But as susceptible as the anti-discrimination rationale is to doubt, the
diversity rationale is even more so. [^436]

First, the *Lutheran Church* court criticized the Commission's vague use
of the term "diversity" of programming. The Court of Appeals observed
that "\[t\]he Commission never defines exactly what it means by 'diverse
programming.'" 141 F.3d at 354. On remand, this Report & Order provides
no clearer a definition of "diversity" than the Commission articulated
in that litigation. In fact, the Report & Order does not even attempt to
grapple with this issue by, for example, distinguishing between the
sorts of "diversity" it might have in mind or explaining how it measures
"diversity." Instead, it speaks of promoting programming that is
"responsive to the interests of a diverse community," an entirely
circular concept. Report & Order at para. 4. This definitional problem
remains as real as ever.

Second, as the D.C. Circuit noted the first time around, "\[its\]
opinion\
. . . undermined the proposition that there is *any* link between broad
employment regulation and the Commission's avowed interest in broadcast
diversity." *Lutheran Church*, 141 F.3d at 356 (emphasis added).
Although the Commission cobbles together anecdotal assertions by
individual commenters as support for the claimed nexus between the race
and gender of station employees and the station's programming, *see*
Report & Order at para. 58, it is highly selective in its choice of
quotations; many commenters denied the nexus as a matter of fact, and
the Commission never explains why they are wrong or less credible and
the others right or more credible. *See id.* at para. 56 & n.112. In any
event, this smattering of personal beliefs provides scant support for
the proposition that race and gender correlate with programming choices
in a statistically significant enough fashion to justify the instant
employment regulations. *Cf. Lamprecht v. FCC*, 958 F.2d 382, 393 (D.C.
Cir. 1992) (holding that even under intermediate scrutiny "\[a\]ny
'predictive judgments' concerning group behavior and the differences in
behavior among different groups must at the very least be sustained by
meaningful evidence").[^437]

Consider also the overall relationship between the adopted regulations
and the ultimate goal of programming diversity. It is even more
attenuated than the essential link between the race/gender of employees
and programming discussed above. To get from the regulated behavior to
the goal of diverse programming requires numerous leaps of evidentiary
logic: first, broad outreach will lead to applicant pools with a certain
number of minorities women; second, such applicant pools will in turn
create interviewee pools with more minorities and women then otherwise
would exist; third, the composition of such interviewee pools will then
affect the composition of the employees at broadcast stations; fourth,
those employees might someday become owners of broadcast properties; and
fifth, those owners will then program stations based on their personal
race and gender. This is a daisy chain of hypotheticals.

Equally ill-supported is the specific link between the race and gender
of low-level employees and programming output. To get from the coverage
of non-editorial employees to its diversity goal, the Commission states
its "belief" that "program content is not determined solely by the
individuals at the station with authority to select programming, but may
also be influenced by interaction between these individuals and other
station employees, which exposes the former to the views and
perspectives of the latter." Report and Order at para. 55. Upon what
record evidence is this assumption based? None. In fact, the Commission
later concedes that "it is *impossible* to establish from empirical
evidence the connection between programming decisions and the
backgrounds of the decisionmakers." *Id.* at para. 58 (emphasis added).
If it is impossible to establish that connection in an empirical
context, it is even harder to establish from an individual's purely
subjective impression of events at a station. *See, e.g., id.* (relying
upon commenter who states, without offering supporting facts, "I
*believe* that having a diversified staff . . . has helped WNBC be more
conscientious towards a wider range of programming and news views")
(emphasis added). This is agency speculation of the idlest sort. *Cf.
Bechtel* *v. FCC*, 10 F.3d 1875 (D.C. Cir. 1993) (finding preference for
owners who manage stations to be without evidentiary foundation and thus
arbitrary and capricious). Worse, it is not even speculation about the
actual operation and management of broadcast stations; it is conjecture
about social science \-- namely, the potential psychological effects
that exposure to one human being might have on another. [^438]

Instead of real evidence, the Commission's assumptions about the
relationship of race and gender to an individual's point of view seem
based on impermissible stereotyping. *See generally Lamprecht*, 958 F.2d
at 392-394. The Supreme Court has said this about making assumptions
about individuals based on their gender: "Discrimination based on
archaic and overbroad assumptions about the relative needs and
capacities of the sexes forces individuals to labor under stereotypical
notions that often bear no relationship to their actual capabilities."
*Roberts v. United States Jaycees*, 468 U.S. 609, 625 (1984). For
example, "\[i\]n the specific context of sex stereotyping, an employer
who acts on the basis of a belief that a woman cannot be aggressive, or
that she must not be, has acted \[unlawfully\] on the basis of gender."
*Price Waterhouse v. Hopkins*, 490 US 228, 250 (1989).

I think it no less an instance of sex stereotyping to say that women are
naturally interested in programming or seeing coverage of topics such as
"breast cancer" and "premature child birth." *See* Report & Order at
para. 58 (citing comments of Cathy Hughes as evidence of nexus between
employment of women and program diversity). A woman's pursuit of these
topics as a programming executive will depend largely on sex-neutral
business factors such as her target audience. A woman's interest in
these topics as a viewer will depend on personal factors such as her age
or marital status; or maybe she would simply rather watch a financial
report, a political talk show, or a documentary on international
relations. I had hoped we were "beyond the day when an employer could
evaluate employees by assuming or insisting that they matched the
stereotype associated with their group." *Price Waterhouse*, 490 U.S. at
250. The Commission cannot simply assume -- or require broadcasters to
assume \-- that a female station manager would be more likely to take a,
say, kinder, gentler, more "feminine" approach to local news or have a
certain point of view on political issues. *See Lamprecht v. FCC*, 958
F.2d at 395-396.

Even if it is true that a majority of women are interested in the kind
of issues described above, what the law has always respected, whether
under Title VII or the Equal Protection Clause, are the abilities and
tastes of the *individual*. As Justice Ginsburg put it, "generalizations
about 'the way women are,' estimates of what is appropriate for most
women, no longer justify denying opportunity to women whose talent and
capacity place them outside the average." *United States v. Virginia*,
518 U.S. 515, 520 (1996). And the above-described problems associated
with generalizing about people based on immutable characteristics such
as gender go to race-based rules with equal force. *Cf. Lutheran
Church,* 141 F.3d at 355 (noting that the danger of perpetuation of
invidious group stereotypes is "poignantly illustrated by this case," as
"one of the NAACP's primary concerns was its belief that the Church had
stereotyped blacks as uninterested in classical music").

In short, the diversity of programming rationale is riddled with
definitional, empirical and, thus, legal flaws. Yet the
anti-discrimination rationale has real problems under the *Federal Power
Commission* decision. Choosing between them is like deciding whether to
jump into the frying pan or the fire. To the extent that the
Commission's section 334 argument and ratification argument relate back
to the public interest language of Title III, those arguments are
legally problematic.

B. [Section 309(j) Provides No Authority For Employment
Regulations]{.underline}

To buttress its statutory argument, the Commission also cites section
309(j) of the Communications Act as authority for the EEO regulations.
*See* Report & Order at paras. 42-47. This statute provides no support
at all for these rules.

It is true enough that Congress expressed certain policy preferences
with regard to minorities and women in this section. *See id.* at para.
42. But those policy preferences are to be implemented, by the plain
terms of the statute, "\[i\]n identifying classes of licenses and
permits to be issued by competitive bidding, in specifying eligibility
and other characteristics of such licenses and permits, and in designing
the methodologies for use under this subsection," the "competitive
bidding" section. 47 U.S.C. section 309(j)(3). This item is not a
rulemaking to design systems for license auctions. Indeed, it is not
about licensing at all. It is about employment practices of existing
broadcasters. Section 309(j) simply has no applicability.

*III. Conclusion*

As set forth above, there is legitimate reason to doubt the
constitutionality of these revised EEO regulations. In essence, the
Commission continues to insist on the collection and use of race and
gender statistics, whether for assessing applicant pools in order to
evaluate the "breadth" of outreach, for assessing the "insular" nature
of hiring, or for determining the overall adequacy of the regulations.
Although there is no case law squarely against what the Commission has
done, neither is there any in direct support of it, as the Commission
claims. Even if this cloud of constitutional doubt were removed -- for
instance, by the adoption of a truly race- and gender-neutral plan such
as BEDA's -- the statutory authority for the rules, in so far as it is
built on the public interest standard and section 309(j), is quite
vulnerable. In the end, I cannot support these regulations.

[^1]: *Streamlining Broadcast EEO Rule and Policies*, MM Docket No.
    96-16, 11 FCC Rcd 5154 (1996) (*Streamlining*).

[^2]: The broadcast EEO Rule, 47 C.F.R. § 73.2080, covers "all licensees
    or permittees of commercially or noncommercially operated AM, FM,
    TV, or international broadcast stations." In addition, pursuant to
    *Establishment of Rules and Policies for the Digital Audio Radio
    Satellite Service in the 2310-2360 MHz Frequency Band*, 12 FCC Rcd
    5754, 5791 (1997), Digital Audio Radio Service by satellite is also
    covered by our EEO Rule. Prior to their suspension, discussed below,
    several different EEO forms were required to be filed by
    broadcasters, including a Broadcast Station Annual Employment Report
    (Form 395-B), a Broadcast EEO Program Report (Form 396) filed with a
    station's renewal application, and a Broadcast EEO Model Program
    Report (Form 396-A) filed with an assignment, transfer, or
    construction permit application.

[^3]: 141 F.3d 344 (D.C. Cir. 1998), *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*").

[^4]: Our cable EEO rules, 47 C.F.R. § 76.71, *et. seq*. ("cable EEO
    rules"), were implemented pursuant to Section 634 of the Cable
    Communications Policy Act of 1984, Pub. L. No. 98-549, 98 Stat. 2779
    (1984), and the Cable Television Consumer Protection and Competition
    Act of 1992, Pub. L. No. 102-385, 106 Stat. 1460 (1992). *See also*
    47 C.F.R. §§ 21.920, 25.601, 74.996, 76.1702, 76.1802, and 100.51.
    Cable entities are required to file Annual Employment Reports (Form
    395-A for cable operators and satellite master antenna television
    systems ("SMATV") and Form 395-M for multichannel video programming
    distributors) and are also required to file a Supplemental
    Investigation Sheet ("SIS" or "SIS form") every five years.

[^5]: "A multichannel video programming distributor is an entity such
    as, but not limited to, a cable operator, a multipoint distribution
    service, a multichannel multipoint distribution service \["MMDS"\],
    a direct broadcast satellite service \["DBS"\], a television
    receive-only satellite program distributor, and a video dialtone
    program service provider..." 47 C.F.R. § 76.71(a). The term "cable"
    in this *Report and Order* includes multichannel video programming
    distributors that control the programming that they distribute. 47
    U.S.C. § 554(h)(1); 47 C.F.R. § 76.71(a).

[^6]: 47 U.S.C. § 151, as amended (1997).

[^7]: 47 U.S.C. §§ 307, 309.

[^8]: *See* 47 U.S.C. §§ 151, 303(f), (g), (r); *Turner Broadcasting
    System, Inc. v. FCC*, 512 U.S. 622, 663 (1994); *FCC v. National
    Citizens Committee for Broadcasting*, 436 U.S. 775, 795-800 (1978);
    *NAACP v. FPC*, 425 U.S. 662, 670 n. 7 (1976) ("*National
    Citizens*"); *Bilingual Bicultural Coalition on Mass Media, Inc. v.
    FCC*, 595 U.S. 621, 628, 633-35 (D.C. Cir. 1978) (*en banc*)
    ("*Bilingual*").

[^9]: 47 U.S.C. § 303(g).

[^10]: The annual employment reporting requirement for cable entities
    was not suspended following *Lutheran Church*.

[^11]: 13 FCC Rcd 23004 (1998) (hereinafter *NPRM*). We note that
    several comments and reply comments were late-filed in this
    proceeding. However, because we believe that it is in the public
    interest to do so, we will consider these comments and reply
    comments as part of the record of this proceeding.

[^12]: *See NPRM*, 13 FCC Rcd at 23008-23011 (paras. 11-17) for further
    discussion of *Lutheran Church*.

[^13]: 515 U.S. 200, 115 S. Ct. 2097 (1995) ("*Adarand*").

[^14]: The court declined to evaluate the constitutionality of the EEO
    program requirements as applied to women, since the issue was not
    before it. *Lutheran Church*, 141 F.3d at 351, n.9.

[^15]: *Id.* at 352.

[^16]: *Id.* at 354.

[^17]: *Id.* at 356-357.

[^18]: *NPRM, 13 FCC Rcd* at 23014 (para. 25).

[^19]: *Lutheran Church-Missouri Synod v. FCC*, 154 F.3d 487 (1998).

[^20]: *Id.* at 492.

[^21]: *See* 47 C.F.R. §76.71 *et seq*.

[^22]: These require broadcasters and cable entities to: disseminate
    their equal employment opportunity program to job applicants and
    employees; review seniority practices to ensure that such practices
    are not discriminatory; examine rates of pay and fringe benefits for
    employees and eliminate any inequities based upon race or sex
    discrimination; offer promotions to qualified minorities and women
    in a nondiscriminatory fashion to positions of greater
    responsibility; cooperate with any labor union in the development of
    programs to assure qualified minority persons or women of equal
    opportunity for employment; include a nondiscrimination clause in
    union agreements; and avoid the use of selection techniques or tests
    that have the effect of discriminating against qualified women and
    minorities. *NPRM*, 13 FCC Rcd at 23039.

[^23]: *NPRM*, 13 FCC Rcd at 23022 (para. 46). *See* 47 C.F.R. §§ 76.71
    *et seq*.

[^24]: 47 U.S.C. § 554.

[^25]: In contrast, Section 634(c) simply provides that cable entities
    "shall" comply with five listed requirements in implementing their
    EEO programs.

[^26]: Tele-Communications, Inc. (TCI ) Comments at 3 (owner of cable
    systems); Cole, Raywid and Braverman (CRB) Comments at 2-3.

[^27]: Pub. L. No. 192-385, 106 Stat. 1460 ("1992 Cable Act").

[^28]: 47 U.S.C. § 334(a).

[^29]: Conf. Rep. No. 862, 102d Cong., 2d Sess. 97 (1992).

[^30]: *See Petition for Rulemaking to Require Broadcast Licensees to
    Show Nondiscrimination in Their Employment Practices*, 13 FCC 2d 766
    (1968).

[^31]: *Id*. at 770.

[^32]: *See Petition for Rulemaking to Require Broadcast Licensees to
    Show Nondiscrimination in Their Employment Practices*, 18 FCC 2d 240
    (1969).

[^33]: *See, e.g*., *Petition for Rulemaking to Require Broadcast
    Licensees to Show Nondiscrimination in Their Employment Practices*,
    23 FCC 2d 430 (1970); *Amendment of Part VI of FCC Forms 301, 303,
    309, 311, 314, 315, 340, and 342, and Adding the Equal Employment
    Program Filing Requirement to Commission Rules 73.125, 73.301,
    73.599, 73.680, and 73.793*, 32 FCC 2d 708 (1971);
    *Nondiscrimination in the Employment Policies and Practices of
    Broadcast Licensees*, 60 FCC 2d 226 (1976) ("*1976 Report and
    Order*"). *See also Memorandum of Understanding Between the Federal
    Communications Commission and the Equal Employment Opportunity
    Commission*, 70 FCC 2d 2320 (1978) \[delineating the Commission's
    investigative jurisdiction and methods of cooperation with the Equal
    Employment Opportunity Commission ("EEOC")\].

[^34]: *See, e.g.*, *San Luis Obispo Broadcasting Ltd. Partnership*, 13
    FCC Rcd 1020 (1998); *Valley Television, Inc.*, 12 FCC Rcd 22795
    (1998); *Congaree Broadcasting, Inc.*, 5 FCC Rcd 7691 (1990); *South
    Plains Broadcasting Company, Inc.*, 101 FCC 2d 1364 (1985).

[^35]: *See, e.g.*, *Davidson County Broadcasting Company, Inc.*, 12 FCC
    Rcd 12245 (1997); *Broadcast Associates, Inc.*, 11 FCC Rcd 15479
    (1996); *Buckley Broadcasting Corp.*, 11 FCC Rcd 6628 (1996);
    *Lanser Broadcasting Corp.*, 10 FCC Rcd 12121 (1995); *Ogden
    Broadcasting of South Carolina, Inc.*, 7 FCC Rcd 1895 (1992).

[^36]: *Bilingual,* 595 F.2d at 628-29 ("\[I\]n implementing its
    anti-discrimination policy, the Commission of necessity must
    investigate broadcasters' past employment practices. A documented
    pattern of intentional discrimination would put seriously into
    question a licensee's character qualification to remain a licensee:
    intentional discrimination almost invariably would disqualify a
    broadcaster from a position of public trusteeship.").

[^37]: *NAACP v. FPC*, 425 U.S. 662, 670 n.7 (1976).

[^38]: We note that while Congressional ratification applies equally to
    radio and television broadcasters -- which have been subject to the
    same EEO rules for the last 30 years -- it is relevant only to radio
    broadcasters since Congress enacted Section 334 of the Act, which,
    as discussed above, *expressly* authorizes the Commission to
    regulate the EEO practices of television broadcasters.

[^39]: *See, e.g., Haig v. Agee,* 453 U.S. 280, 300-06 (1981) ("*Haig*")
    (long-standing interpretation by the Secretary of State of its power
    under Passport Act of 1926 as encompassing the power to revoke
    passports to prevent damage to national security or foreign policy
    was ratified by congressional acquiescence, even though Secretary
    exercised power infrequently); *Lorillard v. Pons,* 434 U.S. 575,
    580-85 (1978) ("*Lorillard*") (Congress is presumed to be aware of
    administrative and judicial interpretations of a statute and to
    adopt and ratify those interpretations when it re-enacts a statute
    without change or incorporates in a new law sections of a prior law
    that have a settled interpretation); *Zemel v. Rusk,* 381 U.S. 1,
    9-13 (1965) ("*Zemel*") (Secretary of State's interpretation of
    Passport Act of 1926 as authorizing him to impose area restrictions
    was ratified by Congress when it left untouched the Secretary's
    broad rulemaking authority when it later enacted legislation
    relating to passports); *Norwegian Nitrogen Products Co. v. U.S.*,
    288 U.S. 294, 313-15 (1933) ("administrative practice, consistent
    and generally unchallenged, will not be overturned except for very
    cogent reasons if the scope of the command is indefinite and
    doubtful").

[^40]: *See, e.g.*, *1969 Report and Order*, 18 FCC 2d at 241-42; *1976
    Report and Order*, 60 FCC 2d at 229; *Report*, 9 FCC Rcd at 6285-87.

[^41]: 47 U.S.C. § 554.

[^42]: Pub. L. No. 98-549, 98 Stat. 2779 ("1984 Cable Act").

[^43]: H.R. Rep. No. 934, 98th Cong., 2d Sess. 86 (1984), *reprinted in*
    \[1984\] U.S. Cong. News 4655. The Senate bill that was ultimately
    enacted, S. 66, did not contain EEO provisions. The EEO provisions
    that were eventually enacted as Section 634 originated in Section
    635 of H.R. 4103, which is explained in H.R. Report No. 934,
    discussed below. The Senate adopted the explanation of H.R. 4103
    contained in H.R. Report No. 934. *See* 130 C.R. S.14285 (Oct. 11,
    1985), *reprinted in* \[1984\] U.S. Cong. News 4738.

[^44]: 47 U.S.C. § 554(b), (c), (d).

[^45]: H.R. Rep. No. 934, 98th Cong., 2d Sess. 84-85 (1984) (emphasis
    added).

[^46]: *Id*. at 86.

[^47]: *Id*.

[^48]: *Id*. at 87.

[^49]: Pub. L. No. 192-385, 106 Stat. 1460.

[^50]: 1992 Cable Act, Section 22(a) (emphasis added). *See also* H.R.
    Rep. No. 628, 102d Cong., 2d Sess. 111-17 (1992).

[^51]: 47 U.S.C. § 334. *See also* Conf. Rep. No. 862, 102d, 2d Sess 97
    (1992).

[^52]: We note that the Commission's EEO rules for broadcasters apply to
    radio as well as television stations[.]{.mark}

[^53]: *See, e.g., Bob Jones University v. United States*, 461 U.S. 574
    (1983) ("*Bob Jones University*").

[^54]: *Haig,* 453 U.S. at 300, *citing Zemel*, 381 U.S. at 11 and other
    Supreme Court cases.

[^55]: The facts here give rise to an even stronger inference of
    congressional ratification than was present in *City of New York v.
    FCC*, 486 U.S. 57 (1988), for example. In that case, cable
    television franchisors challenged the Commission's authority, in
    adopting regulations establishing cable signal quality technical
    standards, to forbid state and local authorities to impose more
    stringent technical standards. In determining that the Commission
    acted within its statutory authority in preempting state and local
    standards, the Supreme Court found that Congress in the Cable Act of
    1984 endorsed the Commission's longstanding policy of federal
    preemption of cable technical standards, and that it was "quite
    significant" that there was no evidence of any intent by Congress to
    "overturn the Commission's decade-old policy without any discussion
    or even any suggestion that it was doing so." *Id*. at 67-68. In the
    case of the Commission's jurisdiction to regulate in the EEO area,
    there is affirmative evidence of congressional approval of the
    Commission's statutory authority.

[^56]: *See, e.g., City of New York v. FCC, supra; Bob Jones
    University,* 461 U.S. at 601 (finding that "Congress affirmatively
    manifested its acquiescence" in the IRS' statutory interpretation
    that educational institutions that discriminate on the basis of race
    are not eligible for an income tax exemption when it enacted a new
    provision denying tax-exempt status to social clubs that
    discriminate on the basis of race); *U.S. v. Rutherford,* 442 U.S.
    544, 554 n.10 (1979) ("once an agency's statutory construction has
    been fully brought to the attention of the public and the Congress
    and the latter has not sought to alter that interpretation although
    it has amended the statute in other respects, then presumably the
    legislative intent has been correctly discerned"), *quoting Apex
    Hosiery Co. v. Leader*, 310 U.S. 469, 487-89 (1940); *Lorillard*,
    434 U.S. at 580 (where Congress adopted a new law incorporating
    sections of a prior law, it can be presumed to have had knowledge of
    and approved the interpretation given to the prior law); *Zemel,*
    381 U.S. at 12 (Congress ratified Secretary of State's authority to
    refuse to impose area restrictions on travel when "\[d\]espite 26
    years of executive interpretation of the 1926 Act as authorizing the
    imposition of area restrictions, Congress in 1952, though it once
    again enacted legislation relating to passports, left completely
    untouched the broad rule-making authority granted in the earlier
    Act.").

[^57]: Evening Post Comments at 4-6.

[^58]: *See* H.R. Rep. No. 862, 102d Cong., 2d Sess 97 (1992) (section
    334 "codifies the Commission's equal employment opportunity rules").

[^59]: Smithwick and Belendiuk (S&B) argues that Section 334 forbids the
    Commission from changing its EEO program requirements. *See* S&B
    Comments at 12-15 (law firm representing over 300 broadcast
    stations). We disagree. As discussed above, while Section 334 is
    drafted as a prohibition, it requires in essence that the Commission
    continue applying to television broadcasters the EEO Rule that was
    in effect on September 1, 1992. Thus, Congress clearly intended that
    the FCC enforce equal employment obligations against broadcasters.
    While the Commission cannot continue to enforce those portions of
    the 1992 EEO Rule that were invalidated on constitutional grounds,
    the Commission can most faithfully advance the congressional intent
    underlying Section 334 by adopting new outreach rules to replace
    those that were invalidated. Section 334 is unlike the statute at
    issue in *MCI Telecommunications Corp. v. FCC*, 765 F.2d 1186 (D.C.
    Cir. 1985) (*"MCI"*), cited by S&B. *See* S&B Comments at 13. In
    *MCI*, the D.C. Circuit found that the Commission lacked authority
    to prohibit non-dominant common carriers of interstate telephone
    service from filing tariffs. The court found that Section 203(a) of
    the Communications Act explicitly requires the filing of tariffs,
    and that the Commission's authority to "modify" this requirement
    pursuant to another statutory provision does not authorize it to
    forbid the filing of tariffs. There was no indication that Congress
    intended to relieve common carriers of the tariff-filing obligation,
    and there was unambiguous language requiring statutory filing, *id.*
    at 1192. Here, in contrast, Congress clearly intended that the
    Commission impose equal employment opportunity obligations on
    broadcasters. Indeed, Congress found the need for such requirements
    so compelling that it forbade the Commission from revising its EEO
    rules then in effect. Moreover, in *MCI,* the Commission's
    abandonment of its tariff requirement reflected a shift in the
    Commission's previous view of the statutory tariff-filing
    obligation. *Id*. at 1192-93. Here, the Commission has consistently,
    since 1969, interpreted its statutory authority as permitting the
    imposition of EEO requirements on broadcasters, and Congress has
    acquiesced in, and ratified, that view.

[^60]: *Lindahl v. Office of Personnel Management*, 470 U.S. 768, 799
    (1985); *Crown Simpson Pulp Co. v. Costle,* 445 U.S. 193, 197
    (1980).

[^61]: 47 U.S.C. §§ 334, 554.

[^62]: 1992 Cable Act, Section 22(a). *See also* H.R. No. 102-628, 102d
    Cong., 2nd Sess. 111-12 (1992) ("The Committee finds that continued
    rigorous enforcement of equal employment opportunity rules and
    regulations is required in order to deter effectively racial and
    gender discrimination.").

[^63]: *See* 1992 Cable Act, Section 22(a)(2) ("increased numbers of
    females and minorities in positions of management authority in the
    cable and broadcast television industries advances the Nation's
    policy favoring diversity in the expression of views in the
    electronic media...").

[^64]: The 1984 Cable Act required the Commission to adopt EEO
    requirements for job categories ranging from officials and managers
    to lower-level positions such as unskilled laborers and service
    workers. In the 1992 Cable Act, Congress expanded the number of
    those job categories from nine to 15.

[^65]: *NPRM*, 13 FCC Rcd at 23017-18 (paras. 36-37).

[^66]: 47 U.S.C. § 309(j), as amended by Balanced Budget Act of 1997,
    Pub. L. No. 105-33, 111 Stat. 251 (1997).

[^67]: 47 U.S.C. § 309(j)(3).

[^68]: 47 U.S.C. § 309(j)(4).

[^69]: *NPRM*, 13 FCC Rcd at 23018 (paras. 37-38).

[^70]: *See*, *e.g.*, *Report*, 9 FCC Rcd at 6319 (noting that
    "management positions \... are often stepping stones to
    ownership."); *Regulatory Treatment of Mobile Services*, *Third
    Report and Order*, 9 FCC Rcd 7988, 8097 (1994) ("EEO rules for
    commercial mobile radio service (CMRS) providers are appropriate and
    necessary to achieve the statutory goal of increased ownership
    opportunities for minorities and women in spectrum-based services.
    By having EEO rules that apply to all CMRS providers, we will
    provide increased communications experience for minorities and
    women. This experience will, in turn, enable them more easily to
    become owners of communications enterprises.").

[^71]: H.R. Rep. No. 934, 98th Cong., 2d Sess. at 84-85 (1984). Congress
    reiterated this position when it passed the 1992 Cable Act,
    declaring 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." H.R. Rep. No. 628,
    102d Cong., 2d Sess. at 114 (1992).

[^72]: National Association of Broadcasters (NAB ) Comments at 18;
    Evening Post Comments at 6.

[^73]: *See e.g.*, Minority Media and Telecommunications Council and 29
    other organizations (MMTC) Comments at 169; American Women in Radio
    and Television (AWRT) Comments at 7 (a national, non-profit
    organization of professional women and men who work in radio,
    television, cable, advertising and related fields); National
    Hispanic Foundation for the Arts (NHFA) Comments at 6-10 (non-profit
    organization whose mission is to improve the image of Latinos in
    this country by developing a better perception of Latinos in the
    entertainment industry); NOW Foundation and five other organizations
    (NOW) Comments at 8-11; U.S. Small Business Administration (SBA)
    Comments at 1.

[^74]: MMTC Comments at 169.

[^75]: AWRT Comments at 7.

[^76]: *Id.*

[^77]: NOW Comments at 8.

[^78]: *Id.* at 10.

[^79]: *See, e.g.*, NOW Comments at 12 (citing the experiences of Cathy
    Hughes, CEO of Radio One, and Joseph Rey, the principal investor in
    Rainbow Broadcasting Ltd., as evidence of the nexus between
    employment opportunities for women and minorities and ownership
    opportunities); NHFA Comments at 6-11 and Testimony of Nely Galán
    (citing the experience of Nely Galán, President of Entertainment at
    Telemundo Network Group, LLC, as evidence that a strong nexus exists
    between hiring minorities and women and promoting ownership
    opportunities for these groups); MMTC Comments, Vol. III, Exhibits
    1, 2, 3, 6, 8, 9, 10, 11, 12, 17, 19, 20, 21 and 22.

[^80]: MMTC Comments, Vol. III, Exhibits 1 (Declaration of Alfredo
    Alonso), 3 (Declaration of W. Don Cornwell), 8 (Declaration of
    Serena Ferguson Mann), 9 (Declaration of Skip Finley), 10
    (Declaration of Ragan A. Henry), 11 (Declaration of Cathy Hughes),
    12 (Declaration of Chesley Maddox-Dorsey), 19 (Declaration of Rokia
    Smith) and 20 (Declaration of Jeffrey H. Smulyan).

[^81]: MMTC Comments, Vol. III, Exhibits 1 (Declaration of Alfredo
    Alonso), 2 (Declaration of Thomas Castro), 10 (Declaration of Ragan
    A. Henry), 11 (Declaration of Cathy Hughes), 12 (Declaration of
    Chesley Maddox-Dorsey), 17 (Declaration of Russell Perry), 21
    (Declaration of Dennis Swanson) and 22 (Declaration of James L.
    Winston); NHFA Comments, Testimony of Nely Galán.

[^82]: MMTC Comments, Vol. III, Exhibits 6 (Declaration of Willie D.
    Davis), 10 (Declaration of Ragan A. Henry), 12 (Declaration of
    Chesley Maddox-Dorsey), 17 (Declaration of Russell Perry) and 22
    (Declaration of James L. Winston).

[^83]: MMTC Comments, Vol. III, Exhibits 1 (Declaration of Alfredo
    Alonso), 6 (Declaration of Willie D. Davis), 11 (Declaration of
    Cathy Hughes), 12 (Declaration of Chesley Maddox-Dorsey) and 21
    (Declaration of Dennis Swanson).

[^84]: MMTC Comments, Vol. III, Exhibits 2 (Declaration of Thomas
    Castro), 6 (Declaration of Willie D. Davis), 11 (Declaration of
    Cathy Hughes), 12 (Declaration of Chesley Maddox-Dorsey) and 17
    (Declaration of Russell Perry).

[^85]: NAB Reply Comments at 2.

[^86]: *See* *Mausolf v. Babbit*, 125 F.3d 661, 667-70 (8th Cir. 1997),
    *cert. denied*, 118 S.Ct. 2366 (1998) ("*Mausolf*") (regulations
    promulgated by an agency will be upheld if they are reasonably
    related to the purposes of the enabling legislation; under rational
    basis test of 5 U.S.C § 706(2)(A), snowmobiling restrictions were
    rationally based on biological opinions finding possible adverse
    impact of snowmobiling on gray wolf population and on anecdotal
    evidence in record of harassment of gray wolves). *Cf*. *Schliefer
    v. City of Charlottesville*, 159 F.3d 843, 849, 850 (4th Cir. 1998),
    *cert. denied*, 119 S.Ct. 1252 (1999) ("*Schliefer*") (In the First
    Amendment context, where government must demonstrate that the
    recited harms are real, not merely conjectural and that the
    regulation will in fact alleviate these harms in a direct and
    material way, the standard "has never required scientific or
    statistical 'proof' of the wisdom of the legislature's chosen
    course;" anecdotal evidence cited by the court).

[^87]: Haley Bader & Potts (HBP) Comments at 21 (law firm representing
    owners of 30 radio stations).

[^88]: *Id.*

[^89]: HBP Comments, Declaration of Harold W. Gore at 2; Declaration of
    John J. Sowada at 2; Declaration of Eric F. Brown at 2; Declaration
    of Louis H. Burton, Jr. at 2; Declaration of Mike Boen at 2;
    Declaration of Dave Vagle at 2.

[^90]: We discussed this statutory basis in the *NPRM*, 13 FCC Rcd at
    23019-22 (paras. 39-45).

[^91]: This authority is based on several provisions of the Act. For
    example, Section 301 of the Act provides that no person can transmit
    radio signals in the U.S. except under a license granted by the
    Commission. 47 U.S.C. § 301. Section 303 authorizes the Commission
    to license and regulate use of the radio spectrum "as public
    convenience, interest, or necessity requires," to "generally
    encourage the larger and more effective use of radio in the public
    interest," and to enact regulations to carry out the provisions of
    the Act. 47 U.S.C. § 303(f), (g), and (r). The Supreme Court has
    held that Section 303(r) confers authority on the Commission to
    issue regulations codifying its view of the public interest
    licensing standard, so long as that view is based on consideration
    of permissible factors and is otherwise reasonable. *National
    Citizens,* 436 U.S. at 793. Section 307 directs the Commission to
    grant and renew station licenses "if public convenience, interest,
    or necessity will be served thereby." 47 U.S.C. § 307(a), (b).
    Section 309 directs the Commission to determine whether the "public
    interest, convenience, and necessity will be served" by the grant of
    applications for licenses, license modifications, or license
    renewals. 47 U.S.C. § 309(a). Section 310(d) imposes the same
    standard on the grant of assignment and transfer applications. *See*
    47 U.S.C. § 310(d). The 1996 Act modified the procedures for
    processing broadcast renewal applications and refined the standard
    to be applied by the Commission in determining whether to grant
    renewal applications. Prior to enactment of the 1996 Act, the grant
    of renewal applications was controlled by the general "public
    interest, convenience, and necessity" standard set forth in Section
    309(a). As amended in 1996, the Communications Act directs the
    Commission to grant a broadcast renewal application if it finds,
    with respect to the station at issue, that the licensee has served
    the public interest, convenience, and necessity; the licensee has
    not committed any serious violations of the Act or the FCC's rules;
    and the licensee has not committed a series of violations of the Act
    or rules that constitute a pattern of abuse. 47 U.S.C. § 309(k). The
    1996 amendment thus makes it clear that the public interest standard
    is broader in scope than compliance with specific provisions of the
    Communications Act or the Commission's Rules.

[^92]: 47 U.S.C. § 151, as amended (1997) (emphasis added) (italicized
    clause added by the 1996 Act).

[^93]: H.R. Rep. 104-458, 104th Cong., 2d Sess. at 143.

[^94]: 47 U.S.C. § 257(b).

[^95]: *NPRM,* 13 FCC Rcd at 23020 (para. 41).

[^96]: *NPRM*, 13 FCC Rcd at 23020 (para. 41), *citing Streamlining*, 11
    FCC Rcd at 5155-56. According to Office of Communication, Inc,
    United Church of Christ and seven other organizations (UCC), social
    science studies indicate that "race is relevant to viewpoint."
    Comments of UCC, Appendix at 24 n.80. UCC also cited a study
    conducted by the American Bar Association Journal and the National
    Bar Association Magazine that indicates differing perceptions of
    Black and White lawyers on the fairness of the judicial system as
    applied to Blacks. *Id*.

[^97]: 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.

[^98]: *NAACP v. FPC,* 425 U.S. 662, 670 n.7 (1976) \[*citing* *Office
    of Communication of United Church of Christ v. FCC,* 359 F.2d 994
    (D.C. Cir. 1966) ("*Office of Communication*")\]. *Cf. National
    Broadcasting Co. v. United States,* 319 U.S. 190 (1943) (FCC has
    authority under its public interest mandate to regulate
    anti-competitive practices of broadcast networks that prevented
    networks or licensees from making the fullest use of radio in the
    public interest).

[^99]: 497 U.S. 547 (1990).

[^100]: According to the Court: "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. We have
    observed that the 'public interest' standard necessarily invites
    reference to First Amendment principles." *Metro Broadcasting*, 497
    U.S. at 567, *quoting National Citizens Committee,* 436 U.S. at 795
    and *Columbia Broadcasting System, Inc. v. Democratic National
    Committee,* 412 U.S. 94, 122 (1973).

[^101]: *Metro Broadcasting*, 497 U.S. at 579.

[^102]: *Id*. at 582.

[^103]: *See, e.g., National Citizens Committee,* 436 U.S. at 795-800;
    *Red Lion Broadcasting Co. v. FCC*, 395 U.S. 367 (1969). *See*
    *also* *Community Television of Southern California v. Gottfried*,
    459 U.S. 498 (1983), which held that the FCC did not abuse its
    discretion when it declined to impose a greater obligation to
    provide special programming for the hearing impaired on a
    noncommercial licensee than a commercial licensee, even though the
    Rehabilitation Act of 1973 applies to the former but not the latter.
    The Court stated that the FCC cannot permit licensees to ignore the
    needs of particular groups within the viewing public, but held that
    the FCC's duty to enforce this obligation derives from the
    Communications Act, not other federal statutes. Thus, the Supreme
    Court acknowledged that the Commission's public interest mandate
    permits and perhaps requires it to determine whether its licensees
    are providing diverse programming to all sectors of its community.
    *See* Comments of UCC, Appendix at 23 and cases cited therein.

[^104]: *Turner Broadcasting System, Inc. v. FCC*, 512 U.S. 622, 663
    (1994) (*quoting United States v. Midwest Video Corp.*, 406 U.S.
    649, 668 n.27) \[*quoting Associated Press v. United States*, 326
    U.S. 1, 20 (1945)\].

[^105]: *Metro Broadcasting*, 497 U.S. at 568.

[^106]: *Metro Broadcasting*, 497 U.S. at 569-600. *Cf. National
    Citizens Committee*, 436 U.S. at 793-802 (recognizing nexus between
    diversity of ownership generally and diversity of viewpoints and
    upholding FCC's broad authority to foster diversity of ownership).

[^107]: The Court noted that Congress had recognized the nexus between
    diversity of ownership and diversity of programming. *Metro
    Broadcasting*, 497 U.S. at 578-79.

[^108]: *Bilingual, 595 F.2d* at 628, 633-35. *See also National
    Organization for Women, New York Chapter v. FCC,* 555 F.2d 1002,
    1017-19 (D.C. Cir. 1977); *Black Broadcasting Coalition of Richmond
    v. FCC,* 556 F.2d 59 (D.C. Cir. 1977) (*per curiam*).

[^109]: *NPRM*, 13 FCC Rcd at 23021-22 (para. 44).

[^110]: *NPRM*, 13 FCC Rcd at 23022 (para. 45).

[^111]: NAB Comments at 18; NAB Reply Comments at 2. Institute for
    Justice (Institute) also argues that the Commission offers no
    evidence to support its view that increased employment of minorities
    and women will increase diverse programming. Institute Comments at 9
    (public interest law firm whose mission includes advancing the civil
    rights of citizens).

[^112]: NAB Reply Comments at 2; Camrory Comments at 5; HBP Comments at
    6, 20; Delta Radio, Inc. and 11 other broadcasters (Delta Radio)
    Comments at 11; 46 Named State Broadcast Associations (46 Named
    StBAs) Comments at 13; 46 Named StBAs Reply Comments at 12-14. HBP
    supplies declarations from its broadcast clients attesting to this
    conclusion and to the respondents' inability "to provide an example
    of a programming decision that was influenced by the race or gender
    of a station staff member, whether or not the staff person was in a
    position to influence programming." *Id*. at 20. Camrory, HBP and
    S&B also reject the notion that lower-level employees influence
    program content. Camrory Comments at 5; S&B Comments at 19; HBP
    Comments at 21. Camrory argues, however, that a nexus between
    minority and female employment and diverse programming need not be
    shown in order to justify the Commission's EEO programs. According
    to Camrory, formats are selected based on audience demographics,
    which also affect hiring decisions. Camrory notes that it is not
    arguing that "the race or gender of a station employee \-- high or
    lower level \-- may not help shape a station's non-entertainment
    programming. Thus, since news and public affairs programming is a
    very important public interest component of overall station
    operations, diverse employment may well contribute to a
    Commission-favored diversity of viewpoint at least as to
    non-entertainment programming." Camrory Comments at 5-6. Camrory
    also concedes that "minority managers managing minority-owned
    stations (for example, an Hispanic-owned, Spanish language radio
    station) are much more attuned to the Hispanic community than are
    general market stations." Camrory Comments at 6.

[^113]: 958 F.2d 382 (D.C. Cir. 1992)

[^114]: NAB Comments at 20, *citing* *Lamprecht*, 958 F.2d at 398.

[^115]: *Lamprecht*, 958 F.2d at 397. By contrast, the court found that
    stations owned primarily by Indians or Alaskans are more than eleven
    times as likely to broadcast "Indian or Alaskan programming" as are
    stations with no Indian or Alaskan owners, while the multiplier for
    Asians or Pacific Islanders is more than eight, for Hispanics more
    than seven, for Blacks, almost four. *Id.* The Court did not define
    women's programming. It noted that the Supreme Court in *Metro
    Broadcasting* had assumed that there is such a thing as "minority
    programming," and it, in turn, assumed the same with respect to
    "women's programming" and other distinct programming types. *Id.* at
    395 and 395 n.4. It also noted that the study it cited did not
    define terms such as "women's programming" or "minority programming"
    but relied instead on the reporting stations to characterize
    themselves. *Id*. at 396 n.8.

[^116]: NAB Comments at 21-22.

[^117]: American Federation of Radio and Television Artists (AFTRA)
    Comments at 6 (national labor organization representing 80,000
    performers in news, entertainment, advertising and sound recording
    industries); AWRT Comments at 6; MMTC Comments at 148-49; UCC
    Comments at 13-14; NOW Comments at 12-20; NOW Reply Comments at
    17-18; NHFA Comments at 6. NOW argues that the EEO rules have
    resulted in increased employment of women and minorities between
    1971 and 1997 (with the percentage of women nearly doubling from
    23.3% to 40.8% and the percentage of minorities more than doubling
    from 9.1% to 19%) and a consequent increase in program diversity.
    NOW Reply Comments at 19.

[^118]: NOW Comments at 4; Lawyers Committee for Civil Rights Under Law
    Comments at 3-4.

[^119]: AFTRA Comments at 6.

[^120]: MMTC Comments, Volume III, Exhibits 11, 14, 21. *See also* MMTC
    Comments, Volume III, Exhibits 2, 3, 7, 10: Declarations of Thomas
    Castro ("There is a direct linkage between integrating the work
    force and the product that goes on the air. . . . An interracial
    media staff is necessary to tell a facet of great stories that,
    otherwise, may never be told."); W. Don Cornwell (tie between
    employment diversity and program diversity); William H. Dilday ("An
    integrated workforce also works in more direct ways by increasing
    the availability of employees who can cover minority issues, know
    what questions to ask, and put a much more balanced story on the
    air." Black manager at station resulted in more balanced coverage
    with respect to sports at local Black colleges); Ragan A. Henry
    ("Minorities in the media will likely serve to broaden the view of
    managers on their community's perspectives."); Testimony of Nely
    Galan, NHFA Comments; NOW Comments at 14-20; UCC Comments at 14.

[^121]: MMTC Comments, Volume III, Exhibit 3: Declaration of W. Don
    Cornwell (virtually all managers at his broadcasting company got
    their start in entry level positions). *See* NOW Reply Comments at
    18 ("employees at all levels have the power to influence
    programming."). AWRT asserts: "The individuals who hold lower-level
    positions are the ready pool of people available for internal
    training and promotion. In some cases, the best means to obtain the
    requisite experience to hold a position of greater influence, or to
    understand enough about the business to know what experience is
    necessary, is by working up from entry level positions." AWRT
    Comments at 6. NOW agrees, noting that employees of diverse
    backgrounds bring different perspectives into the workplace that may
    influence the otherwise narrow programming choices of
    decision-makers and that lower-level jobs are also a stepping stone
    to upper-level employment. NOW cites several examples of upper-level
    employees who started as secretaries. NOW Comments at 18-19.

[^122]: MMTC Comments, Volume III, Exhibits 4 (Declaration of Veronica
    Cruz), 9 (Declaration of Skip Finley), 10 (Declaration of Ragan A.
    Henry), 21 (Declaration of Dennis Swanson); NHFA Comments at 12 &
    Testimony of Nely Galan.

[^123]: NAB Reply Comments at 2.

[^124]: *See* *Mausolf*, *supra*; *Schliefer*, *supra*.

[^125]: UCC Comments at 13-14; UCC Appendix at 25-26; NOW Comments at 3,
    8-9 ; NHFA Comments at 6, 11 and Testimony of Nely Galan; MMTC cites
    a 1990 survey of twenty Black broadcast station owners "which found
    that 50% of the owners had prior broadcasting experience before they
    purchased their first station." MMTC Comments at 169, *citing* A.
    Evans, *Are Minority Preferences Necessary? Another Look at the
    Radio Broadcasting Industry*, 8 Yale Law and Policy Review 380,
    391-92 (1990).

[^126]: Jeff Dubin & Matthew L. Spitzer, *Testing Minority Preferences
    in Broadcasting*, 68 S. Cal. L. Rev. 841 (1995).

[^127]: *Id*. at 869-72.

[^128]: Preference Externalities, Minority Ownership, and the Provision
    of Programming to Minorities, Peter Siegelman & Joel Waldfogel,
    mimeo. 27, The Wharton School, January 1999.

[^129]: *Id*. at 2. According to Siegelman and Waldfogel, "\[w\]e find
    very little overlap in listenership \-- by and large, Blacks listen
    to Black format stations, Whites listen to White format stations,
    Hispanics to Hispanic format stations." *Id*. at 13. Just over half
    of Black listening is concentrated in only two formats, Black and
    Black/Adult Contemporary, which account for less than 2.5% of
    non-Black listening. *Id*. at 13-14. This study uses a list of 43
    formats from Duncan's American Radio, Spring 1993 and 1997.
    Listening data is from Arbitron's Radio USA, Spring 1993 and 1997.

[^130]: *Id*. at 27.

[^131]: *NPRM*, 13 FCC Rcd at 23022 (para. 47). On September 30, 1998,
    the Commission suspended the requirement for broadcast licensees and
    permittees to file annual employment reports (Form 395-B) until
    further notice while it considers the adoption of new EEO rules that
    address the concerns of the court in *Lutheran Church* and makes any
    appropriate changes to its data collection procedures. *See
    Suspension of Requirement for Filing of Broadcast Station Annual
    Employment Reports and Program Reports*, 13 FCC Rcd 21998 (1998)
    ("*Suspension Order*"). The annual employment reporting requirements
    for cable entities have remained in effect.

[^132]: *See, e.g.*, 47 U.S.C. §§ 154(k) (annual report to Congress);
    308(b); 403.

[^133]: *See* 47 U.S.C. §§ 334(a)(2) and 554(d)(3).

[^134]: *See* AFTRA Comments at 7; Camrory Comments at 7-8; NHFA
    Comments at 15; NOW Comments at 28-29; SBA Comments at 1.

[^135]: *See* H.R. Rep. No. 628, 102d Cong., 2d Sess. 111 (1992).

[^136]: NPRM, 13 FCC Rcd at 23025 (para. 59).

[^137]: NAB Comments at 5; 46 Named StBAs Comments at 30; NHFA Comments
    at 15-16; Curators of the University of Missouri (Curators) Comments
    at 8 (licensee of one Missouri Television station several Missouri
    radio stations); Fisher Broadcasting, Inc. (Fisher) Reply Comments
    at 12 (licensee of broadcast stations in Washington and Oregon).

[^138]: *See e.g.*, MMTC Comments at 275-332; National Cable Television
    Association (NCTA) Comments at 15-16 (an association serving and
    representing the cable industry); NOW Comments at 29-30; UCC
    Comments at 10 n.23.

[^139]: 47 U.S.C. §§ 334 and 554^.^

[^140]: 47 U.S.C. § 151.

[^141]: NAB Comments at 15; 46 Named StBAs Comments at 30; Curators
    Comments at 8; S&B Comments at 25; Delta Radio Comments at ii;
    Fisher Reply Comments at 12.

[^142]: 46 Named StBAs Comments at 31-32; Curators Comments at 8-9.

[^143]: MMTC Comments at 324-25.

[^144]: *Id.* at 326. According to MMTC, discrimination cases against
    broadcasters rarely result in a final order because broadcasting is
    a closely-knit industry and broadcast professionals fear retaliation
    or \"blackballing\"; broadcasters use their financial resources to
    delay resolution of the case and \"wear down\" the resource-poor
    complainant; and broadcasters will enter into a monetary settlement
    with a complainant rather than risk their licenses. *Id.* at 326-27.

[^145]: *Id.* at 327.

[^146]: *See e.g.*, Congressmen Michael Oxley and Ralph Hall
    (Oxley/Hall) Comments at 3; Texas Association of Broadcasters (TAB)
    Comments at 3-5.

[^147]: *MOU*, 151 Fed. Reg. at 21799^.^

[^148]: MMTC Comments at 251.

[^149]: Section 1.65(c) of the Rules provides that \"\[a\]ll broadcast
    permittees and licensees must report annually to the Commission any
    adverse finding or adverse final action taken by any court or
    administrative body that involves conduct bearing on the
    permittee\'s or licensee\'s character qualifications and that would
    be reportable in connection with an application for renewal as
    reflected in the renewal form.\" 47 C.F.R. § 1.65(c).

[^150]: *NPRM*, 13 FCC Rcd at 23026 (para. 60).

[^151]: *See* MMTC Comments at 275-305.

[^152]: NOW Comments at 43; Gerri L. Gagnon Reply Comments at 2
    (Associate Producer for Vermont Public Television).

[^153]: MMTC Comments at 251. MMTC defines compulsory binding
    arbitration agreements as agreements compelling an employee to agree
    that any discrimination complaints will be subject to binding
    arbitration. *Id.*

[^154]: *Id*. at 252.

[^155]: *Id.* at 310. Specifically, MMTC proposes that the Commission
    require broadcasters to certify on Forms 314 (Application for
    Consent to Assignment of Broadcast Station Construction Permit or
    License) and 315 (Application for Consent To Transfer Control of
    Corporation Holding Broadcast Construction Permit or License) that
    they did not trade with a broker which engaged in these practices
    and deny applications filed by broadcasters which fail to make this
    certification truthfully. *Id.*

[^156]: *Id*. at 307.

[^157]: *See In the Matter of Policy Regarding Character Qualifications
    in Broadcast Licensing*, 6 FCC Rcd 3448, 3449 (1991).

[^158]: Doreen Vincent Comments at 1 (video producer).

[^159]: *See, e.g.*, Sections 225 (telecommunications services for
    hearing-impaired and speech-impaired individuals), 255 (access to
    telecommunications equipment and services by persons with
    disabilities), 303(u) (television receivers generally required to be
    equipped with a closed captioning chip), 710 (telephone service for
    the disabled) and 713 (video program accessibility) of the
    Communications Act; Section 508 of the Rehabilitation Act, 29 U.S.C.
    § 794d(a)(1)(A) (accommodation by federal departments and agencies
    with respect to the accessibility of information, technology and
    data by employees and members of the public with disabilities);
    *Implementation of Sections 255 and 251(a)(2) of the Communications
    Act of 1934, as Enacted by the Telecommunications Act of 1996*, FCC
    99-181, released September 29, 1999; and *Implementation of Video
    Description of Video Programming*, FCC 99-353, released November 18,
    1999.

[^160]: Pub. L. No. 101-336, 104 Stat. 327 (1990) ("ADA"). The ADA
    provides that "\[n\]o covered entity shall discriminate against a
    qualified individual with a disability because of the disability of
    such individual in regard to job application procedures, the hiring,
    advancement, or discharge of employees, employee compensation, job
    training, and other terms, conditions, and privileges of
    employment." 42 U.S.C. § 12112(a).

[^161]: *See NPRM*, 13 FCC Rcd at 23027-28 (paras. 63-65).

[^162]: Except where noted below, cable entities must comply with the
    same EEO program requirements as set forth in this paragraph.

[^163]: Cable employment units with six to ten full-time employees must
    undertake one recruitment initiative each year and larger employment
    units must undertake two recruitment initiatives per year.

[^164]: MMTC Comments at 220.

[^165]: NAB Comments at 5.

[^166]: 46 Named StBAs Comments at 3-5.

[^167]: HBP Comments at 28-29; S&B Comments at 23-25.

[^168]: NAB Comments at Appendix C.

[^169]: 46 Named StBAs Comments at 26.

[^170]: Specifically, AWRT\'s proposed menu would afford broadcasters
    the following choices: (i) participation in local, regional, and
    national job fairs; (ii) co-sponsoring job fairs with women\'s and
    minority organizations; (iii) posting each top-four job category
    opening with a StBA; (iv) listing each top-four job category opening
    with media trade groups with a broad membership of women and
    minorities; (v) listing all job openings in a local newspaper of
    general circulation and in locally distributed publications of
    women\'s and minority organizations; (vi) online listing of all
    openings on the station\'s web site and linking that site to the
    home pages of women\'s and minority organizations; (vii)
    participation in internship programs with local high schools,
    colleges, and universities; (viii) contacting college and university
    placement centers and/or placing advertisements in the newspapers of
    such institutions; (ix) participation as a sponsor or member in
    conventions or local events of women\'s and minority organizations;
    (x) internal training and promotion opportunities available to all
    employees; (xi) listing all job openings on a 24-hour job line
    (*i.e.*, voice mail) maintained by the station and publicized on the
    air; and (xii) encouragement and use of networking by existing
    station personnel to reach women and minority applicants.

[^171]: AWRT Comments at 4-5.

[^172]: MMTC Comments at 221-23.

[^173]: MMTC Comments at 230-33.

[^174]: *See, e.g.,* MMTC Comments at 29, citing National
    Telecommunications and Information Administration, \"Falling Through
    the Net: A Survey of the \'Have Nots\' in Rural and Urban America\"
    (July 1995) and F. McKissack, \"Cyberghetto: Blacks are Falling
    Through the Net\", *The Progressive*, June, 1998; UCC Reply Comments
    at 19-20; and NOW Reply Comments at 43-44, citing National
    Telecommunications and Information Administration, \"Falling Through
    the Net II: New Data on the Digital Divide\" (July 1998)
    (http://www.ntia.doc.gov/ntiahome/net2/index.html) and the Benton
    Foundation, \"Losing Ground Bit by Bit: Low-Income Communities in
    the Information Age\" (June 1998)
    (http//www.benton.org/Library/Low-Income), among other sources. *See
    also* National Telecommunications and Information Administration,
    \"Falling Through the Net: Defining the Digital Divide\" (July
    1999). This report found, based on 1998 data, a persistent and in
    some instances widening gap between the information rich and the
    information poor, including those who are younger, those with lower
    incomes and educational levels, certain minorities, and those in
    rural areas or central cities.

[^175]: *NPRM*, 13 FCC Rcd at 23021-22 (para. 44),

[^176]: MMTC Comments, Vol. III, Exhibits 1 (Declaration of Alfredo
    Alonso), 3 (Declaration of W. Don Cornwell), 8 (Declaration of
    Serena Ferguson Mann), 11 (Declaration of Cathy Hughes), 12
    (Declaration of Chesley Maddox-Dorsey), and 20 (Declaration of
    Jeffrey H. Smulyan).

[^177]: *See Report*, 9 FCC Rcd at 6319.

[^178]: 46 Named StBAs Comments at Exhibit 1, p. 2.

[^179]: We recognize that some broadcasters may not have a full two
    years prior to the filing of the initial Statement of Compliance.
    Also, there will likely be situations where a broadcaster acquires a
    station during the two-year period. In such circumstances, a
    broadcaster may reasonably apportion the extent of its activities to
    reflect the period of time actually available to it. Absent evidence
    of bad faith, we will accept the broadcaster\'s reasonable judgment
    in this respect.

[^180]: *See*, *e.g.*, NAB Comments at 13; Virginia and North Carolina
    Associations of Broadcasters (VAB/NCAB) Comments at 10; Evening Post
    Comments at 20.

[^181]: *See NPRM*, 13 FCC Rcd at 23028 (para. 67)

[^182]: *See, e.g.,* *WFSQ (FM)*, 7 FCC Rcd 6045, 6046 (1992);
    *Enterprise Media of Toledo, L.P.*, 12 FCC Rcd 3920, 3923-24 (1997).

[^183]: Curators asserts in its Comments at 4-5 that it has 40 to 60
    student interns who, for insurance purposes, are carried on its
    payroll as part-time employees. For purposes of our EEO Rule,
    persons who function as student interns may be treated as such,
    irrespective of how they are treated for insurance purposes.
    Conversely, merely labeling an individual as an \"intern\" would not
    excuse a broadcaster from recruitment if the person were actually
    functioning as a permanent full-time employee.

[^184]: *NPRM*, 13 FCC Rcd at 23029-30 (paras. 72-73).

[^185]: *See, e.g.*, NJBA Comments at 2-3, 5; TAB Comments in MM Docket
    No. 96-16 (incorporated by reference in its Comments herein) at p.
    8-10; VAB/NCAB Comments at 7-9; Fisher Reply Comments at 7-8; 46
    Named StBAs Reply Comments at 14-17.

[^186]: MMTC Comments at 247.

[^187]: We recognize that, in some years, the licensee may not have
    implemented any outreach initiatives because they are required to be
    completed over a two-year period. If a broadcaster has deferred its
    initiatives to the second year, it may indicate \"none\" in the EEO
    public file report for the first year, accompanied by an appropriate
    explanation.

[^188]: We note that 47 C.F.R. §§ 73.3526 and 73.3527 have been revised
    by *Main Studio and Local Public Inspection Files Report and Order*,
    13 FCC Rcd 1569 (1998), *petitions for reconsideration denied in
    part and granted in part*, 14 FCC Rcd 11113 (1999). The
    reconsideration does not affect any EEO issues.

[^189]: *NPRM*, 13 FCC Rcd at 23032 (para. 84).

[^190]: *Id.* at 23033 (para. 86).

[^191]: For similar reasons, we find it unnecessary to grant additional
    administrative relief from EEO requirements to foreign language
    television stations, as one commenter requests. Lincoln Broadcasting
    Company (Lincoln) Reply Comments at 5 (licensee of a California
    television station).

[^192]: *See, e.g.*, VAB/NCAB Comments at 15; S&B Comments at 21.

[^193]: *See*, *e.g.*, AFTRA Comments at 4-5 of Attachment; NOW Reply
    Comments at 35-36.

[^194]: AWRT Comments at 4.

[^195]: In light of Section 334 of the Act, we do not have the authority
    to extend this relief to television stations with five to ten
    employees.

[^196]: 560 F.2d 529, 532-533.

[^197]: *UCC* at 532, *quoting Goldberg v. Weinberg*er, 546 F.2d 477,
    480 (2d Cir. 1976), *cert. denied*, 431 U.S. 937 (1977).

[^198]: Letter from Aida Alvarez, Administrator, U.S. Small Business
    Administration, to Roy Stewart, Chief, Mass Media Bureau, Federal
    Communications Commission (January 19, 2000).

[^199]: *See* Section 73.2080(c)(4), as set forth in Appendix C hereto.

[^200]: *See* Section 73.2080(c)(1), as set forth in Appendix C hereto.

[^201]: *NPRM*, 13 FCC Rcd at 23028 (para. 66).

[^202]: *Id*. at 23028 (para. 68).

[^203]: *See* *Amendment of Part 76 of the Commission\'s Rules to
    Implement the Equal Employment Opportunity Provisions of the Cable
    Communications Act of 1984*, 102 FCC 2d 562, 566-67 (1985).

[^204]: *See* 41 C.F.R. §§ 60-1.4 and 60-1.5.

[^205]: *See* 41 C.F.R. § 60-1.40 and Part 60-2.

[^206]: *See* 41 C.F.R. § 60-1.20.

[^207]: S&B Comments at 23.

[^208]: TAB Comments to *Streamlining* at ii.

[^209]: HBP Comments at 7.

[^210]: MMTC Comments at 31; MMTC Reply Comments at 26; UCC Comments at
    5; AFTRA Comments to *Streamlining* at 1; NOW Comments at 3. NOW
    also argues in its Reply Comments at 6 that the Commission needs to
    continue its own EEO enforcement instead of relying on other
    agencies because only the Commission possesses expertise in
    regulating the broadcast industry and is concerned with issues such
    as diversity of programming, which do not concern the EEOC and other
    entities that focus on specific instances of discrimination.

[^211]: MMTC Comments at 31.

[^212]: MMTC Reply Comments at 32.

[^213]: MMTC Comments at 36.

[^214]: MMTC Comments at 278.

[^215]: NAB Comments at ii; NAB Reply Comments at 14.

[^216]: NAB Comments at iii.

[^217]: AWRT Comments at 9.

[^218]: *Id*.

[^219]: MMTC Comments at 333.

[^220]: *NPRM*, 13 FCC Rcd at 23030 (para. 76).

[^221]: NAB Comments at 29.

[^222]: NAB Comments at 29; AWRT Comments at 3-5.

[^223]: MMTC Comments at 38, n.72.

[^224]: MMTC proposes that the Commission should require licensees to
    maintain records sufficient to allow a meaningful ascertainment of
    whether a station complied with the EEO Rule. MMTC Comments at 219.

[^225]: NAB Comments at 15; NAB Reply Comments at 14; 46 Named StBAs
    Comments at 27; UCC Comments at 18; AWRT Comments at 11. Fisher
    suggests that the Commission should be authorized to inquire about
    licensees\' recruitment efforts but states that this should be done
    only at renewal time unless circumstances warrant further scrutiny.
    Fisher Reply Comments at 11.

[^226]: We anticipate that the number of random/inquiries will not
    exceed five percent of employment units annually.

[^227]: MMTC Comments at 278.

[^228]: *NPRM*, 13 FCC Rcd at 23028 (para. 70).

[^229]: *Id.* at 23029 (para. 71).

[^230]: Id.

[^231]: Id.

[^232]: *See* *EEOC v. Townley Engineering & Manufacturing Co.*, 859
    F.2d 610, 618 (9th Cir. 1988), *cert. denied*, 489 U.S. 1077 (1989)
    (\"*Townley*\") (determination of whether a corporation qualifies as
    \"religious\" in order to be exempt from Title VII is to be done on
    a case-by-case basis by weighing all significant religious and
    secular characteristics to determine whether a corporation\'s
    purpose and character are primarily religious).

[^233]: ACLJ Comments at 13-17 (legal and educational organization which
    preserves religious freedom).

[^234]: *NPRM*, 13 FCC Rcd at 23028-29 (paras. 70-71).

[^235]: ACLJ Comments at 11-12.

[^236]: *Id.* at 12, *citing Lutheran Church* (citation omitted).

[^237]: *See Office of Communication*, 359 F.2d at 1003 (Once a
    broadcaster has sought and been granted an FCC license, the license
    it receives carries enforceable public obligations.).

[^238]: 42 U.S.C. § 2000bb-1.

[^239]: *See also Tony and Susan Alamo Foundation v. Sect. of Labor,*
    471 U.S. 290, 305-6 (1985) (\"\[T\]he recordkeeping requirements of
    the Fair Labor Standards Act, while perhaps more burdensome in terms
    of paperwork, are not significantly more intrusive into religious
    affairs.\").

[^240]: *Order and Policy Statement*, 13 FCC Rcd at 6324.

[^241]: *See Scott v. Rosenberg*, 702 F.2d 1263, 1275 (9th Cir. 1983),
    *cert.denied*, 465 U.S. 1078 (1984) (When churches decide to acquire
    television and radio stations, they avail themselves of facilities
    which, under congressional mandate, must be operated in the public
    interest.).

[^242]: *See City of Boerne v. Flores*, 521 U.S. 507 (1997).

[^243]: NRB Comments at 5-6.

[^244]: NRB Comments at 4-5; Christian Legal Society\'s Center for Law
    and Religious Freedom, Concerned Women for America and Focus on the
    Family (CLS) Comments at 17-18 (organizations concerned with the
    protection of fundamental religious liberties); Crawford Broadcast
    Company (CBC) Comments at 2 (owner of 25 stations with religious
    formats).

[^245]: Americans United Reply Comments at 3-6.

[^246]: *NPRM*, 13 FCC Rcd at 23029 (para. 71) (Other determining
    factors include an entity\'s distinct religious history and whether
    the entity\'s articles of incorporation set forth a religious
    purpose.).

[^247]: *See Corporation of the Presiding Bishop v. Amos*, 483 U.S. 327,
    341 (1987).

[^248]: ^?^ *See Townley at 619* (The court held the for-profit status
    of a company to be a secular characteristic.).

[^249]: Adventists Comments at 1; Good News Radio Comments at 6
    (licensee of broadcast station in California); Americans United
    Reply Comments at 6-7; CLS Comments at 19-20.

[^250]: CLS Comments at 28; NRB at 6; CBC Comments at 3. UCC also
    concurs with NRB. *See* UCC Reply Comments at 24-25.

[^251]: *NPRM*, 13 FCC Rcd at 23029 (para. 71).

[^252]: Id.

[^253]: *See Speer v. Presbyterian Children\'s Home and Service Agency*,
    847 S.W.2d 227, 237 (Texas 1993) (\"To be a religious corporation,
    an entity must actually act to further its religious purpose.\").

[^254]: *See also Townley*, *supra* (For purposes of determining whether
    an entity was eligible to claim a religious exemption from Title
    VII, the court considered, among other things, if the entity
    produced a religious or secular product.).

[^255]: *See* 47 C.F.R. § 0.283

[^256]: 47 C.F.R. § 0.283(b)(1)(iii).

[^257]: ^?^ 47 C.F.R. § 0.283(b)(1)(iii) and (c)(3), respectively.

[^258]: *See* *Suspension Order*, supra.

[^259]: *See* Camrory Comments at 7-8 (this view is predicated on the
    Commission\'s assurance that the information will not be used to
    assess compliance); CRB Comments at 11-12 and TCI Comments at 16-17
    (commenters generally favor this process but believe that the
    Commission should revise Form 395-A); NOW Comments at 28 (the
    Commission has the authority to impose this requirement, and should
    continue to collect such data); AWRT Comments at 8 (the key to
    understanding the appropriate approach to EEO is data collection);
    NHFA Comments at 15 (this information is of great use to the
    Commission in tracking industry trends, but these forms should be
    modified to require minority and female ownership information);
    AFTRA Comments at 7 (the Commission has the authority to continue to
    collect and use data to analyze industry trends); MMTC at 241 (Form
    395 data should be used only to evaluate whether reconfiguring of
    Commission enforcement resources, revision of EEO requirements or
    sunsetting are appropriate).

[^260]: *See* H.R. Rep. No. 628, 102d Cong., 2d Sess. 111 (1992).

[^261]: 1992 Cable Act, Section 22(g).

[^262]: House Report No. 628 indicates that Congress expanded the number
    of upper-level job categories for which cable operators and MVPDs
    were required to report statistical information \"to improve the
    Commission\'s ability to monitor industry employment trends and to
    evaluate the effectiveness of its rules and enforcement practices
    with regard to the representation of women and minorities in senior
    positions.\" H.R. Rep. No. 628, 102d Cong., 2d Sess. 111, 112
    (1992). Thus, Congress clearly contemplated continued Commission
    monitoring of employment trends.

[^263]: 47 C.F.R. §§ 73.3526(d)(7) and 73.3527(e)(7).

[^264]: *See* NAB Comments at 16; 46 Named StBAs Comments at 29; Evening
    Post Comments at 22.

[^265]: Fisher Reply Comments at 12.

[^266]: OMB Comments at 2.

[^267]: *Id*.

[^268]: Oxley/Hall Comments at 1-2; TAB Comments at 8.

[^269]: Oxley/Hall Comments at 1-2.

[^270]: TAB Comments at 8-9.

[^271]: *See* 13 FCC Rcd 23056 (1998).

[^272]: Race and Ethnic Standards for Federal Statistics and
    Administrative Reporting, OMB Statistical Policy Directive No. 15.

[^273]: Revisions to the Standards for the Classification of Federal
    Data on Race and Ethnicity, 62 Fed. Reg. 58,782 (1997).

[^274]: *NPRM*, 13 FCC Rcd at 23034 (para. 89).

[^275]: MMTC Comments at 185, n.316.

[^276]: *NPRM*, 13 FCC Rcd at 23034 (para. 89).

[^277]: *See* 47 U.S.C. § 334(a)(2). Although the statute concerns forms
    filed by television licensees, we have always used the same forms
    and required the same data for radio licensees as for television
    licensees.

[^278]: The Commission suspended the Form 396 filing requirement in
    *Suspension Order*. 13 FCC Rcd at 21998.

[^279]: Correspondingly, we will delete the language in the instructions
    for Form 303-S (\"Application for Renewal of License for AM, FM, TV,
    Translator, or LPTV \[low power television\] Station\"), which
    indicated that such licensees needed to complete only the first two
    pages of Form 396.

[^280]: *See, e.g.,* NAB Comments at 14; 46 Named StBAs at 26.

[^281]: MMTC Comments at 243-62.

[^282]: In *Suspension Order,* we suspended the requirement that
    applicants file this form. 13 FCC Rcd at 21998.

[^283]: *NPRM*, 13 FCC Rcd at 23023-24 (para. 51).

[^284]: NCTA Comments at 3; Camrory Comments at 2-3; CRB Comments at 2;
    Ameritech New Media, Inc. (Ameritech) Comments at 1.

[^285]: *See* NCTA Comments at 4-5; TCI Comments at 10-11; CRB Comments
    at 5; Camrory Comments at 3.

[^286]: NCTA Comments at 5-11; NCTA Reply Comments at 4-5; TCI Comments
    at 10-13; Small Cable Business Association (SCBA) Comments at 8
    (organization representing 300 small cable businesses and systems);
    CRB Comments at 5-7; Camrory Comments at 3-4.

[^287]: NCTA Comments at 9-10; CRB Comments at 5.

[^288]: NOW Comments at 24-27.

[^289]: Camrory Comments at 3.

[^290]: Section 634(d)(2)(B) provides that cable entities shall \"use
    minority organizations, organizations for women, media, educational
    institutions, and other potential sources of minority and female
    applicants, to supply referrals whenever jobs are available in its
    operation.\" 47 U.S.C. § 554(d)(2)(B).

[^291]: Ameritech Comments at 3-4.

[^292]: Id.

[^293]: *See* 47 U.S.C. § 554(d)(2)(B).

[^294]: *See* 47 U.S.C. § 554(d)(3)(A).

[^295]: *NPRM*, 13 FCC Rcd at 23029-30 (para. 73).

[^296]: NCTA Comments at 13-14; TCI Comments at 15; NCTA Reply Comments
    at 6-7.

[^297]: Ameritech Comments at 7-8; CRB Comments at 11.

[^298]: *See* discussion of broadcast recordkeeping requirements, above.

[^299]: Under Section 634(f)(1) of the Communications Act, if the
    Commission finds that a cable entity has failed to comply with the
    statutory EEO requirements three or more times during any seven-year
    period, such failure shall constitute a \"substantial failure to
    comply\" with Title VI of the Communications Act. 47 U.S.C. §
    554(f)(1).

[^300]: Ameritech Comments at 9.

[^301]: In its Reply Comments, NCTA maintains that, just like small
    staff stations, small staff cable employment units have limited
    financial, personnel and time resources available for recruiting
    and, just like small market stations, small market cable employment
    units may have difficulties competing with units in larger markets.
    Therefore, NCTA urges the Commission to recognize the need for
    flexibility regarding recruitment contacts and sources used by small
    cable employment units in small markets. NCTA Reply Comments at 5.

[^302]: SCBA Comments at 2-7. However, for the reasons already
    discussed, we do not agree that a total exemption from EEO program
    requirements, as proposed by SCBA, is necessary.

[^303]: *NPRM*, 13 FCC Rcd at 23029 (para. 72).

[^304]: NCTA Comments at 12; TCI Comments at 13-14; CRB Comments at 7.

[^305]: *NPRM*, 13 FCC Rcd at 23024 (para. 54).

[^306]: *Id.* at 23024-25 (para. 55).

[^307]: We had also proposed in the *NPRM*, 13 FCC Rcd at 23030 (para.
    74), that we continue to evaluate cable entities\' EEO programs
    every year as part of the annual certification process.

[^308]: One commenter notes that the statute requires supplemental
    investigations to be conducted once every five years but suggests
    that the Commission recommend that Congress change the provision to
    once every eight years to bring cable more in line with reviews of
    broadcast EEO programs that take place at the time licensees file
    for license renewal. SCBA Comments at 5, n.10. This suggestion,
    however, is beyond the scope of this proceeding.

[^309]: *See* AWRT Comments at 9; NCTA Comments at 12; NCTA Reply
    Comments at 6; CRB Comments at 6, 8; TCI Comments at 8.

[^310]: TCI Comments at 9. *See also* NCTA Reply Comments at 8.

[^311]: TCI Comments at 9, n. 11; NCTA Comments at 12.

[^312]: 47 U.S.C. § 554(d)(3); 47 C.F.R. § 76.77. Form 395-M, the
    Multi-Channel Video Program Distributor Annual Employment Report, is
    similar to the Form 395-A.

[^313]: 47 U.S.C. §§ 554(d)(2), (3)(A),(B).

[^314]: While not challenging reinstatement of the reporting requirement
    on constitutional grounds, Ameritech argues that the Commission has
    statutory authority to regulate work place discrimination only to
    the extent that it affects programming, and that we should therefore
    modify the cable EEO reporting requirement to apply only to
    positions that can directly influence programming and program
    diversity. Ameritech Comments at 5. As discussed above, the
    Commission has *explicit* statutory authority to regulate the EEO
    practices of cable entities with respect to all job categories.
    *See* 47 U.S.C. § 554. Moreover, Section 634 of the Communications
    Act specifically requires cable entities with more than five
    full-time employees to file annual reports identifying the race, sex
    and job title of employees in 15 comprehensive categories. *See* 47
    U.S.C. § 554(d)(3). Thus, the Commission not only has statutory
    authority to continue collecting employment information from cable
    entities with respect to all job categories, it is required to do
    so.

[^315]: *See* 47 U.S.C § 554(d).

[^316]: Question three asked, \"Do you evaluate your employment profile
    and job turnover against the availability of minorities and women in
    your franchise area?\"

[^317]: Former question one asked, \"Do you disseminate your EEO program
    to job applicants, employees, and those with whom you regularly do
    business?\"

[^318]: Former question two and current question three asks, \"Do you
    contact minority organizations, women\'s organizations, media,
    educational institutions, and other potential sources of minority
    and female applicants for referrals whenever job vacancies are
    available in your organization?\"

[^319]: Formerly, question four read, \"Do you undertake to offer
    promotions to positions of greater responsibility to minorities and
    women in a nondiscriminatory manner?\"

[^320]: Formerly, question five asked, \"To the extent possible, do you
    seek out minority and female entrepreneurs and encourage them to
    conduct business with all parts of your organization?\"

[^321]: Formerly, question six asked, \"Do you analyze the results of
    your efforts to recruit, hire, promote, and use the services of
    minorities and women and use these results to evaluate and improve
    your EEO program?\"

[^322]: *See* 47 U.S.C. § 554(e)(2); 47 C.F.R. § 76.77.

[^323]: Question three read, \"Report the findings of the employment
    unit\'s evaluation of its employment profile and job turnover
    against the availability of minorities and women in the relevant
    labor force.\"

[^324]: Former question one asked, \"Describe the employment unit\'s
    efforts to disseminate its equal employment opportunity program to
    job applicants, employees, and those with whom it regularly does
    business.\"

[^325]: Former question two and current question three read, \"Name the
    minority organizations, organizations for women, media, educational
    institutions, and other recruitment sources used to attract minority
    and female applicants whenever job vacancies become available.\"

[^326]: Formerly, questions four, five, and six read as follows:
    \"Explain the employment unit\'s efforts to promote minorities and
    women in a nondiscriminatory manner to positions of greater
    responsibility;\" \"Describe the employment unit\'s efforts to
    encourage minority and female entrepreneurs to conduct business with
    all parts of its operation and provide an analysis of the results of
    those efforts;\" \"Report the findings of the employment unit\'s
    analysis of its efforts to recruit, hire and promote minorities and
    females and explain any difficulties encountered in implementing its
    EEO program.\"

[^327]: This section reads: \"Give brief job descriptions for employees
    in the job categories specified below. The number specified in the
    box indicates the number of different job descriptions that are to
    be submitted for each category. If no female or minorities are
    employed in the specified job category, choose another job category
    and indicate this on the form. Job descriptions should include the
    position title and a brief description of the major duties and
    responsibilities of the individual(s) in the position. In addition,
    the number of individuals currently employed under the position
    title and a breakdown of these employees by sex and
    minority/national origin should be included.\"

[^328]: *See* 47 U.S.C. § 554(d)(3)(A), (B).

[^329]: *See* CRB Comments at 12; TCI Comments at 16; NCTA Comments at
    12.

[^330]: Ameritech Comments at 9-10.

[^331]: See 47 U.S.C. §§ 554(d)(3)(A), (B); Implementation of Section 22
    of the Cable Television Consumer Protection and Competition Act of
    1992, Equal Employment Opportunities, 3 FCC Rcd 5389 (1993)
    (petitions for reconsideration pending).

[^332]: *NPRM*, 13 FCC Rcd at 23011-13 (paras. 18-23).

[^333]: *Id*.

[^334]: *See, e.g.,* UCC Comments at 5-7, Appendix ; MMTC Comments at
    55-86; Time Warner Cable (Time Warner) Comments at 2 (owner of cable
    systems).

[^335]: *See, e.g.,* UCC Comments at 5-6; MMTC Comments at 62, 74.

[^336]: The *Lutheran Church* panel concluded that the Commission's
    processing guidelines -- which made it unlikely that that an
    employer's EEO program would be examined at renewal if women and
    minorities were employed at half the rate of their presence in the
    local labor force -- encouraged employers to favor women and
    minorities in hiring. *Lutheran Church* at 353-54. No such
    processing guideline would be used in enforcing the proposed rule.

[^337]: MMTC also argues that the proposed collection of data on the
    race and gender of *applicants* to assess the productivity of
    recruitment sources would not pressure employers to grant
    preferences in hiring because "there is no possible regulatory
    benefit or detriment available to a broadcaster by hiring or not
    hiring minorities or women." MMTC Reply Comments at 5.

[^338]: *See, e.g.,* TCI Comments at 15-16; UCC Comments at 16-18; MMTC
    Comments at 82.

[^339]: *See, e.g.,* NAB Comments at 25-29; 46 Named StBAs Comments at
    10-14; Institute Comments at 2-6; Delta Radio, Inc. and 11 other
    broadcasters (Delta Radio) Comments at 7-10; Evening Post Comments
    at 12-16.

[^340]: Institute at 2-3; Delta Radio at 8-10; Pacific Legal Foundation
    (PLF) at 3 (non-profit corporation that engages in litigation in
    matters affecting the public interest); VAB/NCAB Comments at 3-5;
    Roger Clegg Comments, Attachment (Vice-President and General Manager
    of the Center for Equal Opportunity); 46 Named StBAs Reply Comments
    at 7-8.

    One commenter makes an attempt to identify how qualified candidates
    might be disadvantaged by a minority-specific recruitment
    requirement. Institute asserts that such a requirement would
    disadvantage non-minorities because broadcasters have finite
    advertising budgets. Thus, it argues, a requirement that a
    broadcaster run an advertisement in a minority publication will
    "inevitably mean that in some instances, a broadcaster will not run
    an advertisement in a non-minority publication," and that some
    non-minorities will thus fail to learn about the opening. Institute
    Comments at 4. *See also* Roger Clegg Comments, Attachment ("A
    recruitment policy that is aimed at increasing applications from
    some groups and not others \-- as the FCC would require \-- is
    discriminatory.").

[^341]: CRB Comments at 11 (law firm representing various cable
    operators).

[^342]: *See, e.g.,* NAB Comments at 25-27; 46 Named StBAs Comments at
    10-11; VAB/NCAB Comments at 12-13; TAB Comments at 4-5; Golden
    Orange Broadcasting Company (Golden Orange) Comments at 2 (owner of
    a California television station); Evening Post Comments at 13-14;
    CRB Comments at 11; Curators Comments at 7-8; Institute Comments at
    2-6; ACLJ Comments at 2-3; 46 Named StBAs Reply Comments at 9-10.

[^343]: 46 Named StBAs Comments at 10; 46 Named StBAs Reply Comments at
    9-10.

[^344]: NAB Comments at 25-27. *See also* Curators Comments at 7
    (targeted recruitment coupled with requirement for analysis of
    productivity of sources would "pressure stations to make
    race-conscious hiring decisions"); Golden Orange Comments at 2.
    Golden Orange argues that any self-assessment requirement that
    focuses on the results of the outreach program, rather than the
    employer's outreach efforts, would create the "pressure" that the
    court found offensive in *Lutheran Church*.

[^345]: Institute Comments at 5.

[^346]: *Id*.

[^347]: NAB Comments at 28. *See also* 46 Named StBAs Comments at 11-12;
    46 Named StBAs Reply Comments at 11-12.

[^348]: NAB Comments at 28. *See also* 46 Named StBAs Comments at 11-12;
    NAB Reply Comments at 11.

[^349]: 46 Named StBAs Comments at 12; Curators comments at 7-8; PLF
    Comments at 3-4; Roger Clegg Comments (Attachment). PLF and 46 Named
    StBAs argue that the requirement to avoid the use of selection
    techniques and tests that have the effect of discriminating against
    minorities and women is more stringent than the parallel Title VII
    requirement; the latter, they argue, permits employers to use tests
    that the employer demonstrates are job related even if they have a
    disparate impact on minorities and women. *See* 46 Named StBAs
    Comments at 12-13; PLF Comments at 4. As discussed below, the
    Commission requirement was never intended to be more stringent than
    the parallel Title VII requirement, and, in fact, the Commission
    will apply its requirement in a less stringent manner than the Title
    VII requirement. Thus, the 46 Named StBAs and PLF have no cause for
    complaint in this regard.

[^350]: PLF Comments at 4.

[^351]: *See, e.g.,* Evening Post Comments at 16-20; S&B Comments at
    15-22; Institute Comments at 6-8.

[^352]: *See, e.g.,* VAB/NCAB Comments at 7-8; CRB Comments at 11. CRB,
    representing cable companies, urges that "\[r\]ather than require
    certain outreach thresholds or targets for particular classes, the
    Commission simply should require nondiscriminatory and aggressive
    outreach to all segments of the population." CRB Comments at 11.
    Similarly, VAB/NCAB, representing broadcasters, does not oppose the
    imposition of recruitment requirements, but urges the Commission to
    adopt EEO requirements that "focus on whether a broadcaster is
    acting in a fair and nondiscriminatory manner and has taken
    reasonable steps to provide employment opportunities to all
    qualified persons." VAB/NCAB Comments at 7-8.

[^353]: *See Raso v. Lago,* 135 F.3d 11 (1st Cir. 1998) (curtailment of
    statutory preference to reside in redeveloped housing granted to
    former residents of area, most of whom were white, in order to make
    some of apartments available to all applicants regardless of race
    was not subject to strict scrutiny); *Duffy v. Wolle,* 123 F.3d 1026
    (8th Cir. 1997) (affirmative efforts to recruit women did not
    constitute reverse discrimination or support a finding that
    employer's reasons for hiring a woman were pretexts); *Ensley
    Branch, NAACP v. Seibels*, 31 F.3d 1548 (11th Cir. 1994) (both
    voluntary and consent decree provisions requiring recruitment of
    Black and women employees viewed by court as race neutral measures);
    *Peightal v. Metropolitan Dade County,* 26 F.3d 1545, 1557-58 (11th
    Cir. 1994) (*Peightal*) (affirmative action plan for county fire
    fighters designed to remedy past discrimination held narrowly
    tailored, in part, because fire department had tried "race-neutral"
    measures such as recruitment outreach to minorities and women in an
    attempt to diversify its applicant pool, with only limited success);
    *Shuford v. Alabama State Board of Education,* 897 F. Supp. 1535,
    1553 (M.D. AL 1995) ("*Shuford*") (outreach requirements are not
    subject to strict scrutiny because they only expand the pool of
    qualified applicants).

[^354]: *Lutheran Church,* 141 F.3d at 351.

[^355]: *See Ensley Branch, NAACP v. Seibels*, 31 F.3d 1548, 1571 (11th
    Cir. 1994) (consent decree provisions requiring strengthened
    recruitment of Blacks and women viewed favorably by court*);
    Peightal,* 26 F.3d at 1557-58 (affirmative action plan for county
    firefighters was held to be narrowly tailored, in part, because fire
    department had previously tried "race-neutral" measures such as
    recruitment outreach to minorities and women in an attempt to
    diversify applicant pool, with only limited success).

[^356]: *See* NAB Comments at 25-27; 46 Named StBAs Comments at 9-10.

[^357]: 46 Named StBAs Comments at 9-10.

[^358]: Institute Comments at 5. *See also* 46 Named StBAs Comments at
    9, asserting that the "fatal flaw" in the proposed regulatory scheme
    is the "requirement that hiring pools be proportional to the
    minority population."

[^359]: 897 F. Supp. at 1552-53.

[^360]: *See, e.g.,* TCI Comments at 14-16; NCTA Comments at 13-14.

[^361]: Moreover, the fact that in some circumstances statistical
    evidence relating to the employment of minorities and women is
    relevant does not render a nondiscrimination or outreach requirement
    constitutionally suspect. Statistical evidence plays a key role in
    determining compliance with Title VII and other statutes barring
    employment discrimination, but those statutes plainly are not
    unconstitutional. *See* B. Lindemann and P. Grossman, *Employment
    Discrimination Law*, 34-45 (statistics in disparate treatment
    cases), 89-106 (statistics in adverse impact cases), 1687-1740
    (statistical proof generally).

[^362]: *See, e.g., Service v. Dulles,* 354 U.S. 363, 388-89 (1957)
    (Department of State was legally obligated to comply with its own
    regulations governing discharge of employees, notwithstanding more
    permissive statutory provisions); *Gardner v. FCC,* 530 F.2d 1086,
    1089-91 (D.C. Cir. 1976) (an agency is bound by its own rules and
    established procedures). Of course, we are also foreclosed by the
    *Lutheran Church* decision from using the Form 395-B employment
    profile data to assess compliance with our EEO rules.

[^363]: 46 StBAs Comments at 13. *See also* PLF Comments at 3-5.

[^364]: PLF contends that, by requiring that broadcasters promote
    employees in a nondiscriminatory fashion and avoid the use of
    selection techniques and tests that have the effect of
    discriminating against minorities, the FCC expects stations "to
    recruit, hire, and promote minorities and women, even if they do not
    have the qualifications or pass the tests required of other
    personnel." PLF Comments at 4. Neither the cited rules nor anything
    the Commission has said can reasonably be interpreted in the manner
    suggested by PLF.

[^365]: *See Lutheran Church*, 141 F.3d at 351.

[^366]: 46 Named StBAs Comments at 13.

[^367]: 488 U.S. 469 (1989).

[^368]: *Id.* at 510 (emphasis added).

[^369]: Oxley/Hall Comments at 2-3.

[^370]: *NPRM*, 13 FCC Rcd at 23023 (para. 49).

[^371]: Id.

[^372]: *See* 5 U.S.C. § 603. The RFA, *see* 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 (SBREFA).

[^373]: *See* *Review of the Commission's Broadcast and Cable Equal
    Employment Opportunity Rules and Policy and Termination of the EEO
    Streamlining Proceeding*, 13 FCC Rcd 23004 (1998).

[^374]: 141 F.3d 344 (D.C. Cir. 1998), *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"*).

[^375]: Letter from Aida Alvarez, Administrator, U.S. Small Business
    Administration, to Roy Stewart, Chief, Mass Media Bureau, Federal
    Communications Commission (January 19, 2000).

[^376]: Comments of Small Cable Business Association (SCBA), U.S. Small
    Business Administration (SBA), and Congressmen Michael G. Oxley and
    Ralph M. Hall (Oxley/Hall).

[^377]: SCBA Comments at 3.

[^378]: SBA Comments at 1.

[^379]: 5 U.S.C. § 604(a)(3).

[^380]: While we stated in the NPRM that we tentatively believe that the
    SBA's definition of "small business" in this context greatly
    overstates the number of radio and television broadcast stations
    that are small businesses and is not suitable for purposes of
    determining the impact of the proposals on small television and
    radio stations, for purposes of this FRFA, we include the SBA's
    definition in determining the number of small businesses to which
    the rules would apply.

[^381]: 13 C.F.R. § 121.201, Standard Industrial Code (SIC) 4833.

[^382]: Economics and Statistics Administration, Bureau of Census, U.S.
    Department of Commerce, 1992 Census of Transportation,
    Communications and Utilities, Establishment and Firm Size, Series
    UC92-S-1, Appendix A-9 (1995).

[^383]: *Id*.

[^384]: FCC News Release No. 31327, Jan. 13, 1993; Economics and
    Statistics Administration, Bureau of Census, U.S. Department of
    Commerce, Appendix A-9.

[^385]: FCC News Release, Broadcast Station Totals as of September 30,
    1999 (released November 22, 1999).

[^386]: Census for Communications' establishments are performed every
    five years ending with a "2" or "7". *See* Economics and Statistics
    Administration, Bureau of Census, U.S. Department of Commerce, note
    53, III.

[^387]: The amount of \$10 million was used to estimate the number of
    small business establishments because the relevant Census categories
    stopped at \$9,999,999 and began at \$10,000,000. No category for
    \$10.5 million existed. Thus, the number is as accurate as it is
    possible to calculate with the available information.

[^388]: We use the 77 percent figure of TV stations operating at less
    than \$10 million for 1992 and apply it to the 1999 total of 1,616
    TV stations to arrive at stations categorized as small businesses.

[^389]: 13 C.F.R. § 121.201, SIC 4832.

[^390]: Economics and Statistics Administration, Bureau of Census, U.S.
    Department of Commerce, Appendix A-9.

[^391]: *Id.*

[^392]: *Id*.

[^393]: The Census Bureau counts multiple radio stations located at the
    same facility as one establishment. Therefore, each co‑located AM/FM
    combination counts as one establishment.

[^394]: FCC News Release No. 31327, Jan. 13, 1993.

[^395]: FCC News Release, Broadcast Station Totals as of September 30,
    1999 (released November 22, 1999).

[^396]: 13 C.F.R. § 121.201, SIC 4841.

[^397]: 1992 Economic Census Industry and Enterprise Receipts Size
    Report, Table 2D, SIC 4841 (U.S. Bureau of the Census data under
    contract to the Office of Advocacy of the U.S. Small Business
    Administration).

[^398]: 47 C.F.R. § 76.901(e). The Commission developed this definition
    based on its determination that a small cable system operator is one
    with annual revenues of \$100 million or less. *Implementation of
    Sections of the 1992 Cable Act: Rate Regulation, Sixth Report and
    Order and Eleventh Order on Reconsideration*, 10 FCC Rcd 6393
    (1995).

[^399]: Paul Kagan Associates, Inc., Cable TV Investor, Feb. 29, 1996
    (based on figures for Dec. 30, 1995).

[^400]: 47 U.S.C. § 543(m)(2).

[^401]: 47 C.F.R. § 76.1403(b) (SIC 4833)

[^402]: Paul Kagan Associates, Inc., Cable TV Investor, Feb. 29, 1996
    (based on figures for Dec. 30, 1995).

[^403]: 47 C.F.R. § 21.961(b)(1).

[^404]: *See Amendment of Parts 21 and 74 of the Commission's Rules With
    Regard to Filing Procedures in the Multipoint Distribution Service
    and in the Instructional Television Fixed Service and Implementation
    of Section 309(j) of the Communications Act - Competitive Bidding,*
    MM Docket No. 94-131 and PP Docket No. 93-253, Report and Order, 10
    FCC Rcd 9589 (1995).

[^405]: One of these small entities, O'ahu Wireless Cable, Inc., was
    subsequently acquired by GTE Media Ventures, Inc., which did not
    qualify as a small entity for purposes of the MDS auction.

[^406]: 13 C.F.R. § 121.201.

[^407]: We base this estimate on a compilation of 1997 Broadcast Station
    Annual Employment Reports (FCC Form 395-B), performed by staff of
    the Equal Employment Opportunity Branch, Mass Media Bureau, FCC.

[^408]: We base this estimate on a compilation of 1997 Broadcast Station
    Annual Employment Reports (FCC Form 395-B), performed by staff of
    the Equal Employment Opportunity Branch, Mass Media Bureau, FCC.

[^409]: We base this estimate on a compilation of 1997 Broadcast Station
    Annual Employment Reports (FCC Form 395-B), performed by staff of
    the Equal Employment Opportunity Branch, Mass Media Bureau, FCC.

[^410]: Oxley/Hall Comments at 3.

[^411]: *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*").

[^412]: *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.

[^413]: 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.

[^414]: *See, e.g.*, 47 U.S.C. § 307(c)(1); 47 C.F.R. § 73.1020.

[^415]: 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.

[^416]: *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\").

[^417]: *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").

[^418]: ^ ?^*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).

[^419]: H.R. Rep. No. 628, 102d Cong., 2d Sess. 111 (1992), *quoting,*
    H.R. Rep. No. 934, 98^th^ 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.

[^420]: *NAACP v. FPC*, 425 U.S. 662, 670 n.7 (1976).

[^421]: In this statement, I focus on the broadcast rules. My points as
    to their constitutionality apply with equal force to the cable
    rules, however.

[^422]: *See also id.* at para. 8 (records concerning the race,
    ethnicity, and gender of applicants must be maintained in order to
    "monitor whether. . . outreach efforts have been successful in
    achieving broad outreach" and "\[i\]f the data collected indicates
    that outreach has not been inclusive, a broadcaster . . . will be
    expected to adjust its outreach program accordingly"); *id.* at
    para. 105 (describing the possibility of "verifying broad outreach
    using applicant pool data"); *id.* at para. 113 (describing
    collection of applicant pool data by station as necessary to
    "demonstrat\[e\] that its outreach efforts are inclusive"); *id.* at
    para. 115 (stating that "applicant flow data. . . will be one source
    of information concerning a broadcaster's EEO efforts that we may,
    as warranted, utilize in determining whether a broadcaster has
    demonstrated compliance with our EEO rule").

[^423]: There are, of course, practical problems with using the number
    of persons who *apply* for a job to measure the number of people who
    *received notice* of the job. *Cf. City of Richmond v. J.A. Croson,
    Inc.*, 488 U.S. 469, 507 (1989) (criticizing the "completely
    unrealistic assumption that minorities will choose a particular
    trade in lockstep proportion to their representation in the local
    population"). There are virtually infinite reasons why a person who
    hears about a job might not ultimately apply for it -- perhaps they
    are already employed, or maybe they are not as interested in a
    broadcasting career (not the most dynamic sector of the
    communications industry today) as the Commission thinks they should
    be.

[^424]: If the broadcaster refuses to hire applicants because of their
    race or gender, that is of course another thing, and wholly
    actionable under employment discrimination laws.

[^425]: The breadth of this policy -- which limits the ability of
    broadcasters to hire based on "word of mouth," without any evidence
    of past or present discrimination \--is remarkable when compared to
    Title VII. Under Title VII, employment "practices, procedures, or
    tests neutral on their face, and even neutral in terms of intent,
    cannot be maintained if they operate to \'freeze\' the status quo of
    prior discriminatory employment practices." *Griggs v. Duke Power*,
    401 U.S. 424, 430 (1971). The Commission relies on a similar
    perpetuation-of-discrimination theory in order to tie the outreach
    rules to the non-discrimination (as opposed to the diversity)
    rationale. *See* Report & Order at para. 3 ("We believe that
    repeated hiring without broad outreach may unfairly exclude minority
    and women job candidates when minorities and women are poorly
    represented in an employer's staff. . . . Outreach in recruitment
    must be coupled with a ban on discrimination to effectively deter
    discrimination and ensure that a homogenous workforce does not
    simply replicate itself through an insular recruitment and hiring
    process."). Generally, however, there must first be a showing of
    "prior discriminatory employment practices," *Griggs*, 401 U.S. at
    430, to warrant the inference of present, continuing discrimination.
    Yet the Commission presumes present discrimination on the part of
    those who make hiring decisions whenever minorities and women are
    "poorly represented" at stations, without *any* evidence
    *whatsoever* of past or present bad acts. Absent such evidence, the
    Commission's policy begins to look like one of "outright racial
    balancing." *Lutheran Church*, 141 F.3d at 355. Even on the
    Commission's own dubious logic, however, the outreach rules could
    apply only to stations with "poor representation" of the suspect
    classes, for only in those circumstances could there be any chance
    of the "replication" effect that the Commission seeks to prevent.

[^426]: *See* Letter to Chairman William E. Kennard from Richard R.
    Zaragoza on behalf of the Broadcast Executive Directors Association,
    in the Matter of Equal Employment Opportunity, MM Docket Nos. 98-204
    and 96-16, Dec. 29, 1999.

[^427]: As discussed above, this characterization of the Commission's
    program as not creating pressures to favor any class of persons in
    the hiring process is subject to dispute.

[^428]: Curiously, the Commission characterizes its outreach program as
    non-targeted, but relies upon cases involving mostly targeted
    programs. I address the cases in any event, since it appears to me
    that the regulations are, as a practical matter and as previously
    explained, specifically aimed at minorities and women.

[^429]: In response to the primary challenge, the Court of Appeals held
    that HUD did not violate the Equal Protection Clause when it cut
    back on the statutory preference for West Enders in order to make
    housing available to all, regardless of race. There was no record
    evidence that the HUD plan distributed housing based on any racial
    classifications. 135 F.3d at 16. Rather, it sought to mitigate the
    effects of a law that might have subjected HUD to sanctions under
    the consent decree. *Id.* at 17 ("HUD's concern that the preference,
    in this instance, if unmodified, would restrict the preference to
    whites and subject HUD to sanctions under the consent decree" was
    not an illegitimate, race-based motive). In closing, the Court
    expressly noted the limited scope of its holding. *Id.* ("\[I\]t is
    one thing for HUD to insist that all apartments it subsidizes must
    effectively be open to all races" but "it would be quite another
    thing if HUD planned to impose this requirement only where the
    beneficiaries of the statutory preference were white.").

[^430]: I do not doubt that section 634 of the Communications Act grants
    the Commission statutory authority to make EEO rules for cable
    systems, according to the dictates of that provision. Whether the
    statute itself is constitutional, and whether the Commission has
    complied with those dictates, are other matters.

[^431]: *See Haig v. Agee*, 453 U.S. 280, 300 (1981) (holding that
    Congress had approved of administrative "interpretation \[of the
    Passport Act of 1926\]" as statutory authority for passport
    regulations); *Lorillard v. Pons*, 434 U.S. 575 (1978) (holding that
    Congress was presumed aware of the judicial construction of the Fair
    Labor Standards Act as requiring a jury trial when it incorporated
    sections of that law in the Age Discrimination in Employment Act);
    *Zemel v. Rusk*, 381 U.S. 1, 11 (1965) (holding that Congress had
    approved of administrative construction of the 1926 Passport Act's
    "broad rule-making authority" as basis for passport regulations);
    *Norwegian Nitrogen Products Co. v. United States*, 288 U.S. 294
    (1933) (holding that Congress had acquiesced in administrative
    practice pursuant to 1922 Tariff Act and explaining that
    "administrative practice, consistent and generally unchallenged,
    will not be overturned except for very cogent reasons if the scope
    of the \[statutory\] command is indefinite and doubtful," thus
    presuming a contemporaneous statutory command).

[^432]: For radio licensees, the public interest language, without any
    "ratification" of its construction, is all the Commission has;
    section 334 applies only to television licensees.

[^433]: Some of the Commission's stated goals clearly fail this test.
    For example, the Commission asserts it belief that the regulations
    will "increase our understanding of those from different
    backgrounds, decrease the sense of isolation of minority groups, and
    help us build bridges across racial, ethnic and socioeconomic
    divides." Report & Order at para. 4. While perhaps part of a broad
    social or even religious agenda, these are not directly related to
    communications policy.

[^434]: Not coincidentally, it was not until 1976 -- just months after
    *Federal Power Commission* was handed down \-- that the Commission
    first articulated an end other than nondiscrimination for its EEO
    policies. *See* Nondiscrimination in Employment Practices
    (Broadcast), 60 FCC 2d at 229 (EEO rules are meant to promote
    diverse programming).

[^435]: To the extent that the Commission wishes to rely upon character
    qualifications, as opposed to pure non-discrimination or diversity
    of programming rationales, it is hard to see why all holders of
    Title III licenses would not be subject to this same understanding
    of character adequate to hold a federal license. Such a definition
    of "character" seems arbitrarily limited to broadcasters, as opposed
    to all Title III license holders, of which there are many other than
    traditional broadcasters.

[^436]: No doubt this is why the Commission tries to link the outreach
    rule to the non-discrimination rationale, *see* Report & Order at
    paras. 3, 40 (discussing "perpetuation-of- discrimination" theory as
    basis for outreach rules), as opposed to the diversity rationale. As
    noted *supra* n. 5, the theory employed to justify the outreach rule
    as necessary to prevent discrimination goes far beyond even the
    broadest propositions of employment discrimination law.

[^437]: Even if there were sufficient evidence of such a correlation,
    the D.C. Circuit has expressed its "doubt . . . that the
    Constitution permits the government to take account of racially
    based differences, much less encourage them." *Lutheran Church*, 141
    F.3d at 392.

[^438]: Where our judgments are afforded deference, it is with respect
    to areas within our agency's expertise such as, say, the
    technological nature of digital television. Employment matters do
    not fall within that zone of expertise and thus deference. *Cf.
    Bechtel*, 10 F.3d at 881 (stating that where \"predictive
    judgments\" underlying a policy concern an area beyond the
    Commission's expertise, deference to those judgments is not as
    warranted).