**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*[^1] 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.[^2] 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.[^3] 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.[^4] 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.[^5] I am dubious
of its validity and deeply worried that the courts have begun to view
such rationale with dire skepticism.[^6] 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.

# 

[^1]: *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*").

[^2]: *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.

[^3]: 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.

[^4]: *See, e.g.*, 47 U.S.C. § 307(c)(1); 47 C.F.R. § 73.1020.

[^5]: 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.

[^6]: *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\").