# United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued December 2, 2004 Decided February 4, 2005

No. 01-1072

R AINBOW /PUSH C OALITION

, A PPELLANT

v.

F EDERAL C OMMUNICATIONS C OMMISSION

,

A PPELLEE

C URATORS OF THE U NIVERSITY OF M ISSOURI

, I NTERVENOR

No. 04-1084

R AINBOW /PUSH C OALITION

, A PPELLANT

v.

F EDERAL C OMMUNICATIONS C OMMISSION

,

A PPELLEE

C URATORS OF THE U NIVERSITY OF M ISSOURI

, I NTERVENOR2

Appeals of Orders of the

Federal Communications Commission

William L. Lowery argued the ca use for the appellant. H olly

L. Saurer and David E. Honig were on brief.

Jacob M. Lewis

, Attorney, Federal Communications

Commission, argued the cau se for the appellee. J ohn A.

Rogovin

, General Counsel, Richard K. Welch and Daniel M.

Armstrong

, Associate General Cou nsel, and L isa E. Boehley

, Counsel, Federal Communications Commission, were on brief.

Jane E. Mag o , Assistant General Counsel, and C. Grey Pash,

Jr.

, Counsel, Federal Communications Commission, ent ered

appearances.

Kathryn R. Schmelt zer argued the cause for the intervenor.

Barry H. Gottfried

was on brief.

Before: H

ENDERSON , R

OGERS and T ATEL

, Circuit Judges

.

Opinion for the court filed by Circuit Judge H ENDERSON

.

Dissenting opinion filed by Circuit Judge R OGERS

.

K AREN L

E C RAFT H

ENDERSON :

Appellant Rainbow/PUSH

Coalition (Coalition) appeals two decisions of th e Federal

Communications Commission (FCC, Commission) which

granted the application of the Curators of the University of

Missou r i (University) to renew a license to operate radio station

KWMU-F

M in St. Louis, Missouri. In the first decision the

FCC grant ed the application subject to a Notice of Apparent

Liability (NAL) against th

e University in the amount of $8,000,

denying the Coalition

’ s petition to deny renewal based on

allegations of discriminatory employment practices, C urators of

Univ. of Mo., No. 00-445, 16 F.C.C.R. 1174 (2001); in the

s econd the Commission granted the University’s petition to

r e consider and rescinded the NAL, Curators of Univ. of Mo.,3

1 Also appended was the declaration of Sullivan’s “friend and

companion” purporting to support Sullivan’s discrimination claim. No. 03-303, 19 F.C.C.R. 3030 ( 2004). In each decision the

Commission rejected the Coalition’s request to designate the

application for hearing pursuant to 47 U.S.C. § 309(e) and on

appeal the Coalition asks that we rem and for just such a hearing.

Without reaching the m

e rits of the Commission’s decisions, we

dismiss both of the appeals because the Coalition has failed to

establish it has constitutional standing to bring them.

I.

The University filed its license renewal application in

September 1996. In January 1997 Rainbow filed a petition to

deny the application under 47 U.S.C. § 309(d)(1), asserting that

the Unive r sity had violated the FCC’s Equal Employment

Opportunity (EEO) rule, 47 C.F.R. § 73.2080, by discrimi nating

on the basis of race in its employment decisions. Appended to

the petition to deny were decl a rations by one former part-time

employee, Winnie Sullivan, who had filed a disc r imination

complaint against the University with the Equal Emplo yment

Opp ortunity Commission (EEOC) and, subsequently, an

unsuccessful suit for discrimi natory termination in the Eastern

District of Missouri, and by two othe r former employees and

two unsuccessful job applicants who cla imed to have been

subjected to discriminatory treatment. 1 In the petition, the

Coalition pointed out that the University ’s renewal application

made no mention of Sullivan’s discrimination suit. In its

opposition to the Coalition’ s petition to deny, the University

responded that it did not believe disclosure of Sullivan’s

complaint was required because her discrimination s uit resulted

in a verdict in the University’s favor.

In May 1997 the FCC sent the Univer sity a letter asking the

University to explain why it had faile d to disclose the Sullivan4

2 Abrams acknowledged to the Commissi on that she did not pursue

her complaint beyond its filing with the EEOC and that the EEOC had

informed her it had no record of the complaint. 16 F.C.C.R. at 1177

& n.3 discrimination c o mplaint in its EEO report (Form 396), which

the University

submitted with its renewal application and which

expr essly directed the applicant to set out “a brief description of

any complaint which has been filed b efore any body having

competent jurisdiction under Federal, State, territoria l or local

law, alleging unlawful discrimina tion in the employment

practices of the station,”

JA 30. The letter further directed the

University to “identify any other employment discrimination

complaint(s) filed against KWMU-FM during the current license

term.” JA 241. On July 11, 1997 the University submitted an

amendment to its EEO report describing the Sullivan l itigation.

On September 5, 1997 Rainbow wrote a letter to the FCC

alleging the University had deliberately misrepresented its

discrimination record by failing to disclose not only Sullivan’s

complaint and lawsuit but also two other EEOC complaints filed

against the University: one by John Schieszer, a former

part-time KW MU news reporter who claimed he suffered

unlawful retaliation, and one by Tessa Abrams (now Marshall),

a black interviewee who claimed the University failed to hire her

on account of her race. On October 2, 1997 the University

submitted a second amendment acknowledging the unsuccessful

EEOC c omplaint filed by Schieszer but denying any record or

knowledge of a complaint by Abrams. 2

In a dec ision released January 17, 2001 the FCC denied the

Coalition’s petition and approved renewal of the KWMU

license. With regard to the alleged discrimination, the

Commission concluded Rainbow had not established a prima

facie case justifying a hearing because its petition did not

“contain specific allegations of fact sufficient to show . . . that5

3 The Commission disregarded the Abr ams complaint, noting that

“the licensee states that it has not been able to find any record of such

a complaint and is no t aware of any such complaint” and “Rainbow

has no record from the EEOC of such a complaint.” 16 F.C.C.R. at

1180. a grant of the a pplication would be prima facie inconsistent

with” the statute’s requirement that “the public interest,

convenience, and necessit y will be served” by granting a license

application. 16 F.C.C.R. at 1175 (citing 47 U.S.C. § 309(d)(1)).

The Commission explained that Sullivan ’s complaint had been

finally adjudicated—in the University’s favor—an d that, with

regard to the other alleged discriminatees, consistent with longstanding policy and a Memorandum of Understanding be tween

the FCC and the EEOC, the FCC did not adjudicate their claims

bu t instead referred them first to the EEOC. The Commission

advised that, “[i]f

the individual allegations of employment

discrimin ation in Rainbow’s petition continue to be actionable,

the Commission will take cognizance o f any final determination

of employment discrimination.” 16 F.C.C.R. at 1179 (citing

Pac. & So. Co.

, 11 F.C .C.R. 8503, 8505 (1996); N BC-TV

, 5

F.C.C.R. 2049 (1 990); K SDK, Inc.

, 85 F.C.C. 2d 797 (1981),

reconsideration denied

, 88 F.C.C. 2d 1443 (1992); Wash. Radio,

Inc. , 88 F.C.C. 2d 1200 (1982)).

With regard to the misr

epresentation charge, the FCC found

that the University’s initial application and the first amendment

thereto omitted

material facts—respectively, the Sullivan

litigation and Schieszer’s EEOC complaint 3 —but f ound “no

evidence of an int ent to deceive that would support a finding of

misrepresentation or lack of candor.” 16 F.C.C.R. at 1180. The

Commission nonetheless made lice nse renewal subject to an

NAL of $8, 000 “for willfully omitting material facts in its Form

396 in violation of [47 C.F.R. § 73.101 5].” 16 F.C.C.R. at6

4 Section 73.1015 p rovides that “[t]he Commission or its

representatives may, in writing, require from any applicant, permittee,

or licensee writte n statements of fact relevant to a determination

whether an application should be granted or denied” and that “[a]ny

such statements of fact are subject to the provisions of [47 C.F.R.] §

1.17.” Section 1.17, in turn, directs that “no person

. . . shall . . . [i]n

any written or oral statement of fact, intentionally provide material

factual i nformation that is incorrect or intentionally omit material

information that is necessary to prevent any material factual statement

that is made from being inco rrect or misleading” or “[i]n any written

statement of fact, provide material factual information that is incorrect

or omit material information that is necessary t o prevent any material

factu al statement that is made from being incorrect or misleading

without a reasonable basis for believing that any such material factual

statement is correct and not misleading.” 47 C.F.R. § 1.17(a). 1181. 4 Rainbow filed a timely notice of appeal of the decision.

The University m

oved for reconsideration and in an order

released F ebruary 17, 2004, the FCC (with two commissioners

dissenting) res cinded the NAL because the University’s

“omissions were not of sufficient gravity to warrant the

assessment of a forfeiture under a ll of the circumstances.” 19

F.C.C.R . at 3032. Rainbow filed a timely notice of appeal of

this decision as well.

II.

This court has directed that “a petitioner whose stand ing is not

selfevident [sic] should establish its standing by the submission

of its arguments and any affid avits or other evidence

appurtenant thereto at the first appropriate point in the review

proceed ing”—either “in response to a motion to dismiss for

want of standing” or, in the absence of such motion, “with the

petitioner’s opening brief.” S ierra Club v. EP A, 292 F.3d 895,

900 (D.C. Cir. 2002). At this procedural stage, a petitioner

“must demonstrate,” not merely allege, “that there is a7

5 An association must also demonstrate that “the interest it seeks to

protect is germane to its purpose” and that “neither the claim asserted

nor the relief requested requires the member to partici pate in the

lawsuit.” R ainbow/PUS

H Coalition v. FCC, 330 F.3d at 542 (citing

Hunt, 432 U.S. at 343). ‘substantial probability’ ” it wil l suffer injury if the court does

not grant relief. I

d . “The petitioner may carry its burden of

production by citi

n g any record evidence relevant to its claim of

s tanding and, if necessary, appending to its filing additi onal

affidavits or other evidence sufficient to support its claim.” I d

. at 900-01. Having reviewed the materials the Coalition has

submitted, we conclude that it has not met its burden because it

has not demonstrated the threshold requirement for as s ociational

standing that “at least one of its members would have standing

to sue in his own right.” Rainbow/PUSH Coalition v. FCC, 330

F.3d 539, 542 (D.C. Cir. 2003) (citing Hunt v. Wash. State Apple

Adver. Comm’n, 432 U.S. 333, 343 (1977)). 5

To meet this burden the Coalition appen ded to its opening

brief the affidavit of th

e Reverend Dr. Sammie Earl Jones, a

Coalition member who for twenty- five years has resided in St.

L ouis and been a “regular listener” to KWMU. That Jones is a

member of the station’s listening audience, however, does not

gr ant “automatic audience standing” to Jones, or through him to

the Coalition, to challenge a license renewal even when it is

all eged the licensee will operate contrary to the public interest.

Rainbow/PUSH Coalition

, 330 F.3d at 542. Instead, the

Coalition must demonstrate that it satisfies each of the three

prongs of the well-established test for standing.

“The ‘irreducible consti

tutional minimum of standing contains

three eleme nts’: (1) injury-in-fact, (2) causation, and (3)

redressability.” I

d . (quoting Lujan v. Defenders of Wildlife, 504

U.S . 555, 560-61 (1992)). That is, “ ‘ “to establish standing

under Ar t icle III, a complainant must allege (1) a personal8

injury-in-fact that is (2) ‘fairly traceable’ to the defendant’s

conduct and (3) redressable by the relief requested.” ’ ”

Microwave Acquisition Corp. v. FC C , 145 F.3d 1410, 1412

(D.C. Cir. 1998) (quoting SunCom Mobile & Data, Inc. v. FCC,

87 F.3d 1386, 1387-88 (D.C. Cir. 1996) (quotin g Branton v.

FCC, 993 F.2d 9 0 6, 908 (D.C. Cir. 1993) (quoting Allen v.

Wright, 468 U.S. 737, 751 (1984))), cert. denied, 511 U.S. 1052

(1994)). Further, the injury “must be both ‘concrete and

particularized’ and ‘actual or imminent.’ ” I d

. (citing L ujan

, 504

U.S. at 560). The Coalition has not identified an injury that

satisfies all of these requirements.

To support its claim of injury, the Co a lition first points to

portions of Jone s’s affidavit regarding his role as job counselor

with the Coalition. Jones states that the Coalition “undertake[s]

to place job applican

ts with employers and vice versa” and “to

train young people and gui de their transition into the job

market,” that he “perform[s] a good deal of this work

personally” and that “[i]t is a burden on Rainbow/PUSH’s and

[his] own time and resources to keep track of which company

discriminates and which doesn’t, and to have to counsel young

people on how to deal

with discrimination when they encounter

it, how to avoid it, and how to fight it.” Jones Aff. ¶ 14.

In Havens Realty Corp. v. Coleman , 455 U.S. 363 (1982), the

United States Supreme Court establishe d that an organization

has constit u tional standing to challenge the discriminatory

practices of a defe ndant if those practices adversely affect the

activities the person

or organization undertakes to fight

discrimi nation. Havens Realty, an organization devoted “to

mak[ing] equal opportunity in housi ng a reality” in the

Richmond, Virginia area, sent black “testers” to the defendant

real estate company’s apartment s and the testers were falsely

told there were no apartments for rent. 455 U.S. at 368.

Because of the real estate company’s discriminatory practice of

“steering” away black renters, the organization alleged, its9

efforts to assist minorities gain equal access to ho using “ha[d]

been frustrated” and it was required “to d e vote significant

resources to identify and counteract” the discriminatory

practices. If proven, the Supreme Court held, this would

constitute “concrete and demonstrable injury to the

organization’s activitie s—with . . . consequent drain on

resources.” 455 U.S. at 379; see also Fair Employment Council

of Greater Washington, Inc. v. BMC Mktg. Corp.

, 28 F.3d 1268,

1276 (D.C. Cir. 1994) (o rganization that sent testers to

employment agency had standing to challenge agency’s

discriminatory referral practi c es based on allegations that

d efendants’ practices “interfered with [the organization’s

community outreach and public education, counseling, and

research projects], and [] also required the [organization]

C ouncil to expend resources to counteract [defendant’s] alleged

discrimination,” which “closely track[ed] the claims that the

S upreme Court found sufficient in Havens ” (citing Havens, 45 5

U.S. at 379)); Spann v. Colonial Village, Inc.

, 899 F.2d 24, 28

(D.C. Cir. 1990) (finding two equal housing organizations had

standing to challenge realty companies’ racially prefe rential

advertising which “disco uraged black home buyers and renters

from considering defendants’ housing and required the

o rganizations to expend additional resources to identify and

dispel this discouragement”) (citing Havens, 455 U.S. at 379).

Neither Jones nor t

he Coalition has identified such a specific

injury dir ectly attributable to the University’s alleged

discrimination. Jones says only that he finds it burdensome “to

keep track of which company discriminates and which doesn’t”

a n d “to counsel young people on how to deal with

disc rimination when they encounter it.” Jones Aff. ¶ 14. Unlike

the plaintiff in Haven s , he never says that discrimination a t

KWMU “frustra

tes” any of his efforts or that he must expend

“resources to identify and counteract” K WMU’s alleged

discriminatio n. Indeed, the portion of Jones’s affidavit dealing

with counseling never even mentions KWMU. Thus, so far as10

6 The Coalition also

asserts several other “injuries” described in

J ones’s affidavit but to no more avail. As the Coalition notes, Jones

stat e s that he “would like to be able to recruited and considered [sic]

fairly for employment

at KWMU if positions become available for

which [he is] qualified” and would endure “personal indignity” if he

suffered discrimination in such event, Jones Aff. ¶¶ 15-16. This

contingent injury, however, lacks the necessary imminence to confer

standing. S ee Animal Defense Fund, Inc. V. Espy, 23 F.3d 496, 499-

500 (1994) (psychobiologist who might one day seek employment that

requires laboratory research lacks imminent injury necessary to

challenge regulation interpreting laboratory animal protect ion statute).

Jones also states he suffered inju r y as a “taxpayer” whose taxes “are

used to subsidize race discrimination,” Jones Aff. ¶ 21, but he has not

identified the “logical link” between his t axpayer status and the

challenged actions that is required to claim taxpayer standing. S ee

Flast v. Cohen

, 392 U.S. 83, 102-03 (1968). Jones further asserts he

is injured in that the FCC’s failure to sanction the University for its

discrimination omissio ns gives “minority residents in the St. Louis

Area” the impression neither the University nor the FCC considers

discrimination a “s erious” matter, Jones Aff. ¶ 22. This basis too is

insufficient because the “stigmatizing,” “noneconomic” injur y caused

by racial discrimination “accords a basis for standing only to ‘those

persons who are personally denied equal treatment,’ ” Allen v. Wright

, 468 U.S. 737, 755 (1984) (quoting Heckler v. Mathews , 465 U.S. 728,

739-740 (1984)). Finally, Jones asserts that the FCC’s failure to

address the discrimination “creates a huge disincentive

. . . to petition

the FCC for redress of grievances in the future” and “diminishes [the]

ability to persuade the next generation of le a ders that it is worth their

time to engage in the moral charge of petitioning their government, or

other major institutions in society, for redress of grievances,” Jones

Aff. ¶ 28. Again, Jones does not explain how this generalized

compla i nt constitutes a concrete injury to him. S ee KERM, Inc. v.

FCC , 353 F.3d 57, 61 (D.C. Cir. 2004) (complainant “cannot establish we can tell from Jones’s affidavit, any discrimination at KWMU

would constitute “simply a s etback to [his] abstract societal

interest,” Havens

, 455 U.S . at 379, in advancing racial equity. 611

standing simply by ass e rting a role as public ombudsman”) (citing

Sierra Club v. Morton, 405 U.S. 727, 736-38 (1972)). It is tru e that elsewhere in the affidavit Jones alleges that

KWMU is “one o f the benchmark institutions in the

community,” Jones Aff. ¶ 8, and the counseling paragraph

claims that “[i]f major institutions,

. . . like public radio stat ions,

were to stop discriminating overnight, an enormous burden . . .

would be lifted from [his] shoulders,” i d

. ¶ 14. Yet Jones never

explains how an end to discrimination at th is particular

“benchmark institution[]” would perceptibly affect his activities.

Nor do the affidavits of alleged vi ctims of discrimination at

KWMU help the Coalitio n as nothing in the record links the

affiants’ experiences with KWMU to Jones’s counseling efforts.

Contrary to what the dissent says, s ee Dissent at 5, we do not

suggest that an a ffidavit must contain any “magic words” to

support an assertion of standing by the affiant’s organ ization.

Jones’s af

fidavit falls short not because the discussion of job

counseling omits the name “KWMU” but b ecause, contrary to

the law of this circuit, the affidavit never even states, let alone

explains how, the alleged discrimination by KWMU in

particular affects Jones’s counseling and outreach efforts,

reducing their effectivenes s or requiring Jones to take concrete

action in response. S ee Fair Empl oyment Council , 28 F.3d at

1277 (noting that as c ase moved beyond pleading stage,

plaintiff, to show standing, needed to offer “support for [its]

claim that [defendant’s] alleged disc rimination has ‘perceptibly

impaired’ [its] programs”); Spann

, 899 F.2d at 30 (noting that as

case moved forward, plaint iffs would have to prove that

[defendant’s] violation caused them to expend resource s or

suffer some other concrete injury”); A m. Legal Found. v. FCC

, 808 F.2d 84, 92 (D.C. Cir. 1987) (dismissing petition to review

FCC order for lack of standing beca use court was “unable to

discern” how non-enforcement of FCC ru le caused harm to “any12

discrete activities [petitioner] might underta ke”). An affidavit

presented at this procedural stage would have to demonstrate

t hat KWMU’s alleged discrimination has such an impact. S ee

supra p. 6-7.

Alternatively, the Coalition points to our decision in L lerandi

v. FCC , 863 F.2d 79 (D.C. Cir. 1988), in which we upheld the

standing of the appellants, as “listeners,” to challenge the

assignment of two radio licenses on the ground that the

assignments v

iolated the Commission’s then “duopoly” rule,

which prohibited common ownership of two AM stations with

overly overlapping signals. 863 F.2d at 85. As we explained in

Rainbow/PUSH Coalition

, the Llerandi appellants had standing

b ecause they were “seeking to take advantage of a prophy laxis

t he Commission had designed to protect listeners from the

possibility that prog

ramming would be degraded by the creation

of a duopoly.”

330 F.3d at 545. The Coalition claims similar

standing because it is “seeking to tak e advantage of a

prophylaxis that the Commission had designe d to protect

residents of the service area and listen ers of the station from the

po ssibility that a licensee that practiced intentional racial

discrimination in its employment d ecisions, which calls into

question its

character qualifications[,] would have its license

renewed.” Reply Br. 9. This argument overlooks a cardinal

d istinction between the duopoly rule and the EEO rule. As the

court in Llerandi explained, the “ultimate point” of th e duopoly

rule w as “to assure (or at least enhance) diversification of

viewpoints within the broadcast industry.” L lerandi

, 863 F.3d

at 85. Thus, this court had little difficulty finding that a listener,

who would be dire ctly affected by the programming diversity

the rule was designed to promote, had standing to challenge the

Commission’s alleged violation of the rule. By contrast, the

violation alleged here involves a rule which was not des igned to

affect a station’s program

ming. The Coalition apparently seeks

to reviv e its theory, which we rejected in R ainbow/PUSH

Coalition, that a listener has public interest stan ding to challenge13

the license of a broadcaster t hat breaks FCC rules–any FCC

rules r egardless whether their violation affects the programming

that listeners hear. S ee Rainbow/PUSH Coaliti on , 333 F.3d at

544-45. As we responded then, while it may be desirable for the

Commission to vigorously enforce licensee compliance with its

rules, “it does not follow

. . . that the audien ce is harmed

whenever the Commission punishes a particular [viol ation] with

less than the ultimate sa nction.” 333 F.3d at 545; s ee also

KERM, Inc. v. FCC

, 353 F.3d 57, 61 (D.C. Cir. 2004)

(complainant “cannot establish standing simply by ass erting a

role as public ombudsman” but must assert “injury that is

sufficiently unique as to distinguish [ complainant] from any

other p ublic-minded potential litigant interested in ensuring the

faithful enforcement of the Act”) (c i ting Sierra Club v. Morton,

405 U.S. 727, 736-38 (1 972); S teel Co. v. Citizens for Better

Env’t, 523 U.S. 83, 107 (1998)). Now, as then, the Coalition has

failed to “establish an ‘actual or imminent’ effect upon

programming” to support its claim of listener standing. I d

. (citing Sierra Club , 292 F.3d at 899).

Finally, the Coalition relies on our deci sion in O ffice of

Communication of United Church of Christ v. FCC, 359 F.2d

994 (D.C. Cir. 1966), to claim listener standing to challenge

discrimina tory programming based on “the self evident impact

on program service stemming from intentional race

discrimination in employment.” Reply Br. 10; s ee also Jones

Aff. ¶ 9; (complaining o f being deprived “of program service in

the public int erest,” including “the multitude of viewpoints held

by people of color”). As we explained in Rainbow/PUSH

Coalition

, however, such standing requires a s howing that the

challenged FCC action “resulted in some actual ef fect upon the

programming” of the licensed station; otherwise “fears of

decreased diversity remain purely speculative.” 330 F.3d at 545.

In UCC the appellants made such a showing, p roffering a

particula r ized complaint of the sparse and “disrespectful”

television exposure accord ed blacks “ ‘accompanied by a14

detailed presentation of the results of Appell a nts’ monitoring of

a typical week's programming.’ ” 330 F.3d at 543 (quotin g

UCC

, 359 F.2d at 998 n.4) . The Coalition has not made a

comparable showing here. This is not to say that discriminatory

employment practices cannot in some instan ces affect

p rogramming content and thus cause injury to audien c e

members but to establish standing on this basis a complainant

must demonstrate

both the existence of injury to the audience

and its causal link to the discrimination. The Coalition has not

done so.

Because the Coalition has failed to demonstrate ac tual and

redressable injury caused by the challenged license renewal so

as to establish

Article III standing, we dismiss its appeals from

the Commission’s decisions.

So ordered

.R OGERS

, Circuit Judge

, dissenting : In concluding that the

Rainbow/PUSH Coalition fails to demonstrate standin g under

Article III of the U .S. Constitution, the court applies a

heightened evidentiary standard for causation and redressibility

that precedent d oes not require. According to the court, Rev.

Jones’s affidavit is insufficient to establ i sh constitutional

standing because it fails to explain how the burden on his

r esources is “directly attributable to the University’s alleged

discrimination” or how “an end to discrimination at this

particular ‘benchma r k institution[]’ would perceptibly affect his

act ivities.” Op. at 9, 11. Under Supreme Court precedent and

our own case law, Rev. Jones’s affidavit alleges all of the facts

necessary to establish constitutional standing.

In Havens Realty Corp. v. Coleman

, 455 U.S. 363 (1982),

the Supreme Court held that an organizational plaintiff suffers

an injury caused by a defendant’s discri minatory practices when

i t devotes counseling and referral resources to identifying and

counteracting

such discrimination. I

d. at 379. Such “concrete

and demonstrable injury to the o rganization’s activities — with

the consequent drain on the organization’s resources

—

c onstitutes far more than simply a setback to the organiz ation’s

abstract social interests.” I d. Relying on Havens

, this court has

held that “an organization establishes Arti cle III injury if it

alleges t hat purportedly illegal action increases the resources the

group must devote to programs independent of its suit

challenging the action.” S pann v. Colonial Villa g e, Inc

., 899

F.2d 24, 27 (D.C. Cir. 1990); s ee also Fair Employment

Co uncil, Inc. v. BMC Marketing Corp. , 28 F.3d 1268, 1276

(D.C. Cir. 1994). Under this precedent, Rev. Jones’s affidavit

sufficiently establishes that t he burden on his resources is

traceable to the Commis sion’s unconditional renewal of the

University’s radio station license.2

The facts alleged in Rev. Jone s’s affidavit must be “taken

to be true.” L ujan v. Defenders of Wildlife , 504 U.S. 555, 561

(1992); see Sierra Club v. EPA

, 292 F.3d 895, 899 (D. C

. Cir.

2002). Rev. Jones describes the University’s radio station

KWMU-FM as “one of the benchmark instituti ons in the

community,” as it is “one of only two secular, noncommercial

full power radio stations in [the] communit y.” Jones Aff. ¶ 8.

He alleges that KWMU-FM discriminates again st minority job

applicants in the St. Louis area, and that such discrimination i s

“particularl

y egregious” because the University is a public

educational institution. I

d. ¶ 4. He states that Rainbow/PUSH

“seeks to ensure that all Americans have equal opportunities to

work in industries, such as broadcasting, that are essential to

democracy,” and that “[t]oward this end, Rainbow/PUSH

counsels job applicants and employers on the subject of equal

employment opportunity, and

. . . undertake[s] to place job

applicants

. . . and guide thei r transition into the job market.” I d

. ¶ 14.

More particularly, Rev. Jones explains that h e personally

devotes significant resources to iden tifying employers that

discriminate agai

nst racial minorities so as to “avoid sending

young people off to search for employment at wor k sites where

they will eithe r waste their timing filing applications doomed to

be discarded on the basis of race, or be hired and f ace the

frustration of

a career where they can never fulfill their full

poten tial because of discrimination based on race.” I d

. He also

states that he dev

otes significant resources to counteracting

em ployment discrimination in the St. Louis area by

“counsel[ing] young people on how to deal with discrimi nation

when they encounter it, how to avoid it, and how to fight it.” I d.

These burdens on Rain

bow/PUSH’s and Rev. Jones’s resources

are traceable to the Commission’s unconditional renewal of the

University’s radio s tation license because, Rev. Jones explains,

“[b]y renewing the University’s lice nse [for KWMU-FM] for3

another 8 years without so much as a hearing, the FCC extended,

rather than provided relief from, the station’s abili ty to continue

the alleged patter

n of discriminatory employment practices.” Id.

¶ 5. Such discrimination may, as this court explained in Fair

Employment Council

, “increase the number of people in need of

counseling” or “

reduce[] the effectiveness of any given level of

outreach efforts.”

28 F.3d at 1276. Rev. Jones concludes that

“[i]f major institutions

. . . that provide leadership roles in

society as a w hole like public radio stations ” would stop

discriminating, the burden on his counseling and referral

resources “would be lifted from [his] shoulders.” Jones Aff. ¶

14 (emphasis added).

Counsel for the Commission observed at oral argum ent that

Rev. Jones’s affidavit would have been “stronger” if it had

identified a spe cific instance in which KWMU-FM had denied

employment to an applicant whom Rev . Jones had referred or

counseled. But counsel did not argue, and indeed could not

argue, that the failure to do so rendered Rev. Jones’s affidavit

insufficient as a matter of la w. Neither Supreme Court nor our

precedent requires the organization to identify a specific

instance in which the defendant discrim inated against an

individual whom the organizat ion referred or counseled; an

allega tion that the organization expended resources to combat

such discrimination is sufficient. S ee Havens , 455 U.S. at 379;

Fair Employment Council , 28 F.3d at 1276; Spann

, 899 F.2d at

27-28. Although in Havens and Fair Employment Council there

was evidence that

the defendant had discriminated against the

organization’s testers, such evidence was unnecessary to

establish standing becaus e the resources devoted to testing did

not form the basis of the organization’s injury. S ee Havens

, 455

U.S. at 379; Fair Employment Council

, 28 F.3d at 1276-77.

Indeed, in Spann

, this court found standing without evidence of

the defendant’s discrimination against the organizatio n’s testers,

relying instead on the organization’ s allegation that the4

“defendants’ preferential advertising tended to stee r black home

buyers and renters aw ay from the advertised complexes and thus

impelled the organizations to devote resources to checking or

neutralizing the ads’ adverse impact.” 899 F.2d at 27.

To the extent that precedent can be read to require the

organization to identify the particular burden that the

defendant’s discrimination, as opposed to g e neral societal

discrimination, places on the organization’s resource s

, see

Havens , 455 U.S. at 379; Fair Employment Council , 28 F.3d at

1276; Spann

, 899 F.2d at 27-28, Rev. Jones’s affid avit is

sufficient when read in the light most favorable to him and

particularly when read in c onjunction with the other affidavits

proffered by Rainbow/PUSH alleging employment

discrimination by KWMU -FM. Cf. Sierra Club , 292 F.3d at

899; Tao v. Freeh

, 27 F.3d 635, 638 (D.C. Cir. 1994) (citing

Anderson v. Liberty Lobby, Inc.

, 477 U.S. 242, 250, 255 (1986)).

Rev. Jones identifies KWMU-FM as “one of the be nchmark

institutions in the community” and emphasizes that “[i]t is

important for the Court to appre ciate the vital and unique

importance of radio station KWMU-FM in our commu nity.”

Jones Aff. ¶ 8. He explains that the station has a “unique role to

play in fosteri

n g racial dialogue in St. Louis” because the

University is a public educa tional institution, i d.

, which makes

the station’s employment discrimination “particularly

egregious,” id. ¶ 4. He specifies that he seeks to place minority

job applicants in the broadcastin g industry, and that if “major

institutions” with “leadership roles in society as a whole like

public radio stations ” would stop discriminating, a significant

burden on his coun seling and referral resources would be

alleviated. I

d. ¶ 14 (emphasis added). While other “major

institutions” that engage in employment discrimination may also

burden his resources, Rev. Jones’s affidavit sufficiently

identifies KWMU-FM as one of those “major institutions”

whose discriminatory e mployment practices burden his5

resources. Such practices are documented by the specific facts

alleged in the several affidavits of minority job applicants and

employees that describe the station’s discrimination against

them. Cf. Rainbow/PUSH Coalition v. FCC

, 330 F.3d 539, 544

(D.C. Cir. 2003).

According to the court, Op. at 9, Rev. Jones’s affidavit is

insufficient because it fails to mention KWMU-FM by name in

paragraph 14 when referring to dis c rimination by “major

institutions . . . that provide leadership roles in society as a

whole like public radio stations ,” even though the entire

affidavit refers to KWMU-FM, and paragraphs 4 and 8

specifically describe KWMU-FM as one of the only two secular

public radio stations in the St. Louis community and as a

benchmark in

stitution that engages in “particularly egregious”

employment discrimi

nation. Jones Aff. ¶¶ 4, 8. Nothing in our

precedent requires the affidavit to state “magic words” in the

way that the court requires today. Rather than confront the

content of R

ev. Jones’s affidavit and accord him all reasonable

inferences, the court simply asserts that he fails to explain how

KWMU-FM’s alleged discriminatory employment practices

burden his counseling and referral resources. Op. at 11. Taken

together with the affidavits submitted by Rainbow/PUSH and

read as a whole in t

he light most favorable to Rainbow/PUSH,

Rev. Jones’s affidavit sufficiently connects, for the purpose of

demonstrating constitutional standing, KWMU-FM’s

discriminatory empl

oyment practices to the burden on his

counseling and referral resources.

Rev. Jones ’s affidavit also adequately demonstrates that his

injury is redressible. A “violation of the procedural

r equirements of a statute,” such as the Commission’s failure to

c o nduct a hearing pursuant to 47 U.S.C. § 309(e), “is sufficient

to grant a plaintiff standing to sue , so long as the procedural

requirement was ‘designed to protect some threatened concrete6

interest’ of the plaintiff.” C ity of Waukesha v. EPA

, 320 F.3d

228, 234 (D.C. Cir. 2003) (q uoting Defenders of Wildlife

, 504

U.S. at 573 n.8). This requirement “is not very stringent” and

requires only “some sort of connection between the procedural

requir ement at issue and the substantive action of the agency.”

I d. at 234-35. Here, the statute itself establishes the connection

between the procedural requirement of an evidentiary hearing

and the substantive action of conditioning or denying the license

renewal. S ee 47 U.S.C. § 309 (2000). Thus, for the purpose of

evaluating redressi

bility, the court must assume that

Rainbow/PUSH will succeed on the merits and obtain the

remedies it seeks, see City of Waukesha

, 320 F.3d at 235, such

as a denial of the license renewal or a renewal conditioned on

nondiscriminatory employment practices.

By a pplying a heightened evidentiary standard for causation

and redressibilit y, the court betrays a fundamental

misconception about the purpo se of the standing requirement.

At this stag

e of the proceeding, the issue is not likelihood of

success on the merits. Rather, the standing requirement simply

ensures that the petitioner has a “d efined and personal stake in

the outcome of the litigation” and that the court does not render

an advisory opinion. F lorida Audubon Soc’y v. Bentsen , 94 F.3d

658, 6 63 (D.C. Cir. 1996) (en banc). For example, in H avens

, the Supr eme Court accepted for the purpose of establishing

standing th

e organization’s allegation that it had expended

resources to combat

the defendant’s discrimination, while noting

that the organization would “have to demonstrate at trial that it

has ind eed suffered impairment in its role of facilitating open

housing before it

will be entitled to judicial relief.” 455 U.S. at

379 & n.21; see also Fair Employment Council

, 28 F.3d at 1277.

Indeed, to require evidence beyond the specific facts alleged in

Rev. Jones’s affidav

i t “is to raise the standing hurdle higher than

the necessary showing for success on the merits” in a petition

seeking an evidentiary hearing on KWMU-FM’ s alleged7

employment discrimination

. Friends of the Earth, Inc. v.

Laidlaw Envtl. Servs., Inc. , 528 U.S. 167, 181 (2000).

The Supreme Court has observed that “in many cases the

standing question can be answered chiefly by c omparing the

allegations of the particular co mplaint to those made in prior

standing cases.” Spann , 899 F.2d at 29 (quoting Allen v. Wright

, 468 U.S. 737, 751-52 (198 4)) (internal quotation marks

omitted). To the extent that this court requires a heightened

evidentiary showing to establish standing, i t departs from the

Supreme Court’s approach. For example, in F riends of the

E arth , the Supreme Court held that a plaintiff’s affidavit

alleging that he intended to fish in a river allegedly polluted by

the defendant was sufficient to establish standing, even though

the plaintiff did not provide evidence showing that th e specific

site where he intended to fish was polluted by specific toxins

discharged by the defendant. 528 U.S. at 181-82. It was

sufficient that the pla i ntiff identified the river, stated that he

wanted to fish in the river but was deterred by pollution there,

and alleged that the defendant pollute d the river. Similarly, it is

sufficient that Rev. Jones identifie d the St. Louis broadcasting

job market, stated that he wanted to counsel and place minority

job applicants in that market but was burdened by the

“pollution” of discriminatio n by major institutions, and alleged

that KWMU-FM was a major “polluter.”

Accordingly, I would h old that Rainbow/PUSH has

demonstrated it s Article III standing to challenge the

Commission’s deni al of its request for a hearing on the

University’s application for renewal of KW MU-FM’s license.

Upon reaching the merits, I would deny the peti tion. First,

the Commission has “br

oad discretion in determining whether

to hold a hearing in conjunction with a license renewa l,” and this

court defers to the Commission’s decision not to hold a hearing8

if it is “reasonable and supported by the evidence before it.”

Beaumont Branch of the NAACP v. FCC , 854 F.2d 501, 507

(D.C. Cir. 1977). For the reasons stated by the Commission, s ee

Curators of the Univ. of Missouri , 16 F.C.C.R. 1174, 1176-78

(2001) , it could reasonably conclude that the affidavits

submit ted by Rainbow/PUSH did not constitute strong enough

evidence to justify departure from the Commission’s

“longst anding general policy” of referring such allegations of

employment discrimination to the Equal Employment

Op portunity Commission. I d. at 1178; see Tallahassee Branch

of t he NAACP v. FCC , 870 F.2d 704, 710 (D.C. Cir. 1989).

Second, it was reasonable for the Commission to conclude that

it was u nnecessary to conduct a hearing on the University’s

failure to include in its license renewal applica tion all

employment discrimination complaints filed against it.

Rain bow/PUSH’s allegations are not necessarily inconsistent

with the Commission’s findi ng that the University did not intend

to deceive the Commission. See Citizens for Jazz on WRVR,

Inc. v. FCC

, 775 F.2d 392, 396 (D.C. Cir. 1985); Fox Television

Stations, Inc.

, 10 F.C.C.R. 84 52, 8487 (1995). This finding is

supported by both the University’s statement tha t the omissions

were inadvertent, which the Commission was entitled to credit,

and the fact that the omitted complaints were re s olved in the

University’s favor. See Curators , 16 F.C.C.R. at 1179-81.