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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  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 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, 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 (2nd 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.   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.   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.   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, 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.   I am dubious of its validity and deeply worried that the courts have 
begun to view such rationale with dire skepticism.   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.




  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").
    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.

   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.

  See, e.g., 47 U.S.C.  307(c)(1); 47 C.F.R.  73.1020.
    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. 

    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").

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