APPEALS COURT AGAIN REJECTS FCC BROADCAST EEO RULES
U.S. Appeals Court, D.C., again overturned FCC’s broadcast EEO rules, this time saying both minority-based and gender-based rules “put official pressure upon broadcasters to recruit minority candidates, thus creating a race-based classification that is not narrowly tailored to support a compelling governmental interest.” Court ruled only on constitutionality of 2nd option (Option B) for broadcasters to meet EEO requirement, but said Option B wasn’t severable from first option so it threw out entire rule (CD Oct 2 p6, Jan 21/00 p1). FCC Chmn. Kennard called decision “a defeat for diversity. At a time when many Americans are outraged at the lack of minorities in prime time and in the boardrooms of America, the broadcasters have once again used the courts to strike down even a modest outreach effort.”
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Without commenting directly on court decision, NAB Pres. Edward Fritts said broadcasters “strongly” endorsed congressional legislation to reinstate minority tax certificate program, “which proved extremely effective in attracting more minorities into the ownership ranks of broadcasting.” He said broadcasters also would continue implementing “creative initiatives” to boost minority and female ownership.
“It is far from clear that future employment in the broadcast industry is a public benefit for which the government is constitutionally responsible,” court said in opinion written by Judge Douglas Ginsberg for himself and Judges David Sentelle and Karen Henderson. It said, however, court doesn’t even have to decide on compelling interest issue because FCC Option B “places pressure upon each broadcaster to recruit minorities without a predicate finding that the particular broadcaster discriminated in the past or reasonably could be expected to do so in the future.” Court called that “the antithesis of a rule narrowly tailored.”
On issue of severability, court said Option B was integral part of overall rule, so it couldn’t allow Option A to stand without it. Core of rule, court said, is to give broadcasters 2 options for meeting EEO requirements: “Presumably, the Commission would not have created Option B if it believed that Option A by itself was sufficient to achieve the Commission’s goals.” Allowing Option A to stand after ruling Option B unconstitutional would make Option A mandatory, court said, which would “undercut the whole structure of the rule.”
Court also said it wasn’t acceptable simply to strike all references to minorities from rule, saying that in earlier Lutheran Synod case when court said rules were unconstitutional for minorities, FCC also dropped rules for women. “It is clear that severing all references to minorities would severely distort the Commission program and produce a rule strikingly different from any the Commission has ever considered.”
Decision also rejected FCC claim that it wasn’t specifically trying to aid minorities or women, only to require licensees to make “broad outreach” for applicants. Court said if that were true Commission “would scrutinize the licensee’s outreach efforts, not the job applications those efforts generate.” It said even threat of possible investigation by FCC provided “powerful incentive” for licensees to focus recruitment on women and minorities.
Appeal by 50 state broadcast associations also said that new EEO rules violated Administrative Procedure Act because FCC didn’t give reasoned explanation for new policy. However, court rejected that argument.