**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

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. [^1]

# 

# A. [The Regulatory Scheme Is Not Neutral With Respect To Race And Gender]{.underline}

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.*[^2]

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.[^3] *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.[^4] 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. [^5]

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.[^6]

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}

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.[^7] I
address *seriatim* each case cited for this proposition.[^8]

*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.[^9]

*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

The Commission's argument for statutory authority to regulate broadcast
employment appears to rest in large part on a ratification theory.[^10]
*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. [^11]
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.[^12] 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.[^13] 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). [^14]

Justifying the EEO rules as furthering an aim of nondiscrimination under
the "public interest"standard is thus clearly problematic. [^15] 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. [^16]

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").[^17]

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. [^18]

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]: In this statement, I focus on the broadcast rules. My points as to
    their constitutionality apply with equal force to the cable rules,
    however.

[^2]: *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").

[^3]: 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.

[^4]: 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.

[^5]: 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.

[^6]: *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.

[^7]: 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.

[^8]: 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.

[^9]: 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.").

[^10]: 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.

[^11]: *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).

[^12]: 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.

[^13]: 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.

[^14]: 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).

[^15]: 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.

[^16]: 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.

[^17]: 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.

[^18]: 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).