FCC SAYS COURT ERRED IN NOT SEVERING OPTION B FROM EEO RULES
Option B of EEO rules isn’t essential to FCC’s goal of ensuring that broadcasters “engage in broad outreach in recruiting new employees,” agency told U.S. Appeals Court, D.C., late Wed. in support of its petition for partial reconsideration of court order in dismissing rule “in its entirety.” In throwing out rules, court had said Option B “put official pressure on broadcasters to recruit minority candidates, thus creating a race-based classification that is not narrowly tailored to support a compelling government interest and is therefore unconstitutional” (CD Jan 17 p1). Just one work day after Commission sought partial consideration (CD March 5 p9), in unusual move court sought additional information from Commission.
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In response, agency said Option B was put in rules “at the request of broadcasters to provide them with flexibility.” Under rules as adopted, Option A required stations to undertake 4 specific employee recruitment initiatives, while Option B gave licensees option to design their own “outreach program.” FCC said court’s order “pointed to nothing [in record], and we are aware of nothing” to support ruling that Option B would “substantially alter” broadcasters’ recruitment practices to favor minorities and women. Broadcasters choosing Option B “who report few or no women and minority applicants will not face an automatic investigation,” FCC told court. Several groups have filed in support of Commission’s reconsideration request, including Minority Media & Telecom Council, National Organization for Women, Office of Communications of United Church of Christ.
Responding to Commission, coalition of 50 state broadcaster associations (which had appealed rules after they were adopted last year), told court that FCC in it’s latest argument “has tried to rewrite history to claim that Option B was some sort of independent ‘add-on’… adopted only to accommodate broadcasters’ requests.” But, they said, in adopting new EEO requirements to replace those court ruled unconstitutional in Mo. Lutheran Church case in 1998, FCC “made it clear that Option B was an integral part” of new rules. Commission, broadcasters said, failed to “present any valid arguments” for court to reconsider its decision. Agency has “consistently misread” same court’s decision in Lutheran Church case “to focus on so-called processing guidelines rather than to acknowledge this court’s clear holding [in 1998] that the entire affirmative action rule was unconstitutional,” broadcasters said.