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*****************************************************  Concurring Statement of Commissioner Harold W. Furchtgott-Roth

In the Matter of Review of the Commission's Broadcast and Cable EEO Rules and Policies
and Termination of the EEO Streamlining Proceeding, MM Docket No. 98-204, MM
Docket No. 96-16

     I do not oppose the issuance of a Notice of Proposed Rulemaking (NPRM) to seek
comment on, among other things, the statutory authority for, and the constitutional feasibility of,
employment regulations for broadcasters.  For one thing, the D.C. Circuit in Lutheran Church
expressly contemplated that we take up the question of statutory authority for our non-
discrimination rule.  I cannot at this time, however, support the unnecessarily broad conclusions
and the underlying reasoning contained in this item, or the expansive discussion of social policy
set forth in the introduction.

     As I have explained in other contexts, there are many hurdles to clear on this legal track
before we can adopt sound EEO rules.  See In the Matter of Suspension of Requirement for
Filing of Broadcast Station Annual Employment Reports and Program Reports (released
September 29, 1998).  Among them is the necessity of showing a real, not just presumed,
connection between the race or gender of station employees and the "viewpoint" that is ultimately
expressed on the air.  Nothing in this NPRM suggests that we have any such record, and yet the
NPRM concludes that the contemplated rules would indeed further the goal of creating "varying
perspectives," supra at page 2, on the air.

      In addition, while it is true that the holding in Lutheran Church did not address and thus
does not prohibit pure recruiting rules, it is not necessarily settled law that such rules are wholly
free of Equal Protection implications, as the NPRM argues.  See supra at para. 21.  At least
arguably, a person is "treated unequally" within the meaning of Adarand if they are not recruited
for a job because of their race, while others are.  Certainly, the Supreme Court has never
suggested that the meaning of "race-based decisionmaking" changes depending on which
particular stage of the employment process -- firing, retirement, promotion, hiring, interviewing,
applying, or recruiting -- is at issue.  I intend carefully to review the cases in this area before
reaching any conclusions.  

     Furthermore, at this juncture -- the giving of notice of a proposed rulemaking -- I would
not reach the tentative conclusions that we have statutory authority to issue either an anti-
discrimination or a recruiting rule.  See supra at paras. 25, 31.  To my mind, this is an open
question, and one on which I will be very interested in receiving comment; indeed, I encourage
commenters to address this question.  I thus reserve judgment on this question, as well as the
validity of the arguments pressed in support of authority in this NPRM, until we issue a final
order.

     Finally, I would not reach the tentative conclusion that, notwithstanding the decision in
Lutheran Church, the Commission may continue to require the filing of race and gender
employment statistics.  See supra at para. 47.  I likewise withhold judgment on that issue.