MD/DC/DE Broad. Assoc. v. Fed. Commun Comm'n, 00-1094

• Decision Date: 19 June 2001
• Docket Number: No. 00-1094,00-1094
• Citation: 253 F.3d 732
• Court: U.S. Court of Appeals — District of Columbia Circuit
• Parties: (D.C. Cir. 2001) MD/DC/DE Broadcasters Association, et al., Petitioners v. Federal Communications Commission and United States of America, Respondents Minority Media and Telecommunications Council, et al., Intervenors & 00-1198 FOR THE DISTRICT OF COLUMBIA CIRCUIT Filed

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253 F.3d 732 (D.C. Cir. 2001) MD/DC/DE Broadcasters Association, et al., Petitioners
v.
Federal Communications Commission and United States of America, Respondents Minority Media and Telecommunications Council, et al., Intervenors No. 00-1094 & 00-1198 United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT Filed June 19, 2001

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On Petitions for Rehearing

Before: Ginsburg, Sentelle and Henderson, Circuit Judges.

Opinion for the court filed by Circuit Judge Ginsburg.

Ginsburg, Circuit Judge:

The respondents in this case, the Federal Communications Commission and the United States; one of the petitioners, the United Church of Christ; and the intervenors, the National Organization for Women and the Minority Media and Telecommunications Council, have each petitioned for rehearing. All but MMTC seek rehearing of the court's decision not to sever Option B from the Commission's EEO rule after holding that only that aspect of the challenged rule was unconstitutional. The NOW seeks rehearing of the court's decision not to sever all references in the rule to minorities and thereby leave the rule intact with respect to women. Only the UCC and the Intervenors seek rehearing of the court's underlying conclusion that Option B is unconstitutional.^*

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The only issue about which the various petitions raise any points that were not fully considered in our prior opinion is the severability of Option B. For the reasons set forth below, we adhere to our original conclusion that Option B is not severable and hence deny the petitions for rehearing.

* * *

Before arguing that the panel erred in vacating the entire EEO rule rather than vacating Option B alone, the Commission acknowledges that severance is proper in a case where, as here, the agency has "state[d] its intent [that an unconstitutional portion of a regulation be severed]," only "when such intent is rational, i.e., ... when 'the remainder of the regulation could function sensibly without the stricken provision.' " FCC Pet. for Rehearing at 1 (quoting MD/DC/DE Broadcasters, 236 F.3d at 22); see also K-Mart Corp. v. Cartier, Inc., 486 U.S. 281, 294 (1988).¹ In this case, the court recognized that in the rulemaking proceeding the Commission had expressed its intent as a general preference for severance. See MD/DC/DE Broadcasters, 236 F.3d at 22 (citing Report & Order, 15 F.C.C.R. 2329, p 232 (2000) (R&O) ("If any provision of the rules ... [is] held to be unlawful, the remaining portions of the rules ... shall remain in effect"). The court concluded, however, that the rule could not, without Option B, sensibly serve the goals for which it was designed.

The Commission marshals three reasons that, in its view, undermine our conclusion. First, citing paragraph 113 of the decision under review, the Commission argues that it "clearly stated that Option A was sufficient by itself to achieve the Commission's goals." See FCC Pet. for Rehearing at 10-11 (emphasis supplied). That, however, is not quite so.

The Commission had two goals in adopting its EEO rule: It sought to "ensur[e] broad outreach [in recruitment] while affording broadcasters flexibility in designing their EEO programs." R&O at p 78. In paragraph 113 of the Report and Order, in which the Commission now claims that it "clearly stated" that Option A alone could accomplish both its goals, the Commission actually said this:

We believe that our goal of ensuring that broadcasters engage in broad outreach so that all qualified job candidates are informed of employment opportunities in the industry can be accomplished through compliance with [Option A], without requiring the collection or reporting to the Commission of applicant pool data.... However, if a broadcaster wishes to avail itself of the option of dispensing with the supplemental recruitment measures [prescribed in Option A] and designing its own program [pursuant to Option B], we do not think that it is unreasonable to require it to collect applicant pool data demonstrating that its outreach efforts are inclusive.

Id. at p 113 (emphasis added). As can readily be seen, the Commission, despite its present argument to the contrary, did not state -"clearly" or otherwise -that it could achieve both its goals with Option

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A alone; at most, it stated that it believed it could achieve one of its two goals, namely ensuring broad outreach. It said nothing about the sufficiency of Option A in achieving the Commission's other goal, namely "affording broadcasters flexibility."

Second, the Commission argues that in a footnote appended to an order denying reconsideration of the rule it implicitly indicated that Option A could function alone. See Reconsideration Order, 15 FCC Rcd. at 22555 n. 19. In that footnote the Commission stated that if the court should hold the data collection requirement in Option B unconstitutional, then only that option should be invalidated. The conclusory statement in the Reconsideration Order, however, says barely more on this issue than does the Report and Order under review. Again, for the Commission to say that it intends that the court sever Option B if necessary is not to say that the court's decision to do so would leave a sensible regulation in place. As we discuss further below, it would not.

Third, counsel for the Commission argues that, even if the Commission did not previously make clear that in its view Option A could function sensibly as a freestanding EEO rule, it has done so now in its petition for rehearing. In that petition, Commission counsel unequivocally states that "the Commission would have adopted the remainder of the EEO rule even without Option B." The Federal Communications Commission is a collegial body, however; it speaks through its orders, not through counsel's filings. The dissent points to a press release issued by a single Commissioner in which she refers to the petition for rehearing as an action of "the Commission." The same press release, however, cautions that "Release of the full text of a Commission order constitutes official action." Yet counsel points to no order taking the view espoused in the petition for rehearing. Furthermore, counsel's claim is facially implausible.

Recall that in the decision...