595 F.2d 621 (D.C. Cir. 1978), 75-1855, Bilingual Bicultural Coalition on Mass Media, Inc. v. F.C.C.

Docket Nº:75-1855, 75-2181.
Citation:595 F.2d 621
Party Name:The BILINGUAL BICULTURAL COALITION ON MASS MEDIA, INC., Appellant, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee, Mission Central Co., Intervenor. CHINESE FOR AFFIRMATIVE ACTION, Appellant, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee, CBS, Inc., Intervenor.
Case Date:May 04, 1978
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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Page 621

595 F.2d 621 (D.C. Cir. 1978)

The BILINGUAL BICULTURAL COALITION ON MASS MEDIA, INC., Appellant,

v.

FEDERAL COMMUNICATIONS COMMISSION, Appellee, Mission Central

Co., Intervenor.

CHINESE FOR AFFIRMATIVE ACTION, Appellant,

v.

FEDERAL COMMUNICATIONS COMMISSION, Appellee, CBS, Inc., Intervenor.

Nos. 75-1855, 75-2181.

United States Court of Appeals, District of Columbia Circuit

May 4, 1978

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[Copyrighted Material Omitted]

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On Rehearing En Banc.

Nolan A. Bowie, Washington, D. C., with whom, H. Joseph Farmer, Washington, D. C., was on supplemental memorandum of Bilingual Bicultural Coalition on Mass Media, Inc., case No. 75-1855.

Ellen S. Agress, New York City, for appellant Chinese for Affirmative Action, Charles M. Firestone, was on supplemental memorandum of Chinese for Affirmative Action, case No. 75-2181.

Daniel M. Armstrong, Associate Gen. Counsel, Washington, D. C., with whom Roberta L. Cook and Sheldon M. Guttmann, Counsel, Washington, D. C., were on the supplemental memorandum for F. C. C.

Ashton R. Hardy, Richard J. Bodorff, Henry C. Bowen and J. Tullos Wells, Washington, D. C., entered appearances for F. C. C.

Eric L. Bernthal, with whom Harry M. Plotkin, Washington, D. C., was on supplemental memorandum, Ronald A. Cass, Charlottesville, N. C., for Mission Central Co., Intervenor.

Thomas J. Daugherty, with whom Preston R. Padden, Washington, D. C., was on supplemental memorandum of amicus curiae Metramedia, Inc.

Erwin G. Krasnow, Washington, D. C., with whom Melvin L. Reddick, was on brief, for amicus curiae Nat. Ass'n of Broadcasters.

Michael H. Bader, with whom Raymond C. Fay and John M. Pelkey, Washington, D. C., were on brief, for amicus curiae Doubleday Broadcasting Co. Inc.

Bernard Koteen, Washington, D. C., with whom Alan Y. Naftalin, Arthur B. Goodkind, Washington, D. C., Corydon B. Dunham, New York City, and Howard Monderer, Washington, D. C., were on memorandum of amicus curiae Nat. Broadcasting Co., Inc.

Drew S. Days, III, Asst. Atty. Gen., with whom Walter W. Barnett, Atty., Dept. of Justice, Washington, D. C., was on brief, for the United States of America as amicus curiae.

Earle K. Moore, New York City, was on brief, for amicus curiae the Office of Communications of The United Church of Christ.

James M. Nabrit, III, with whom Eric Schnapper, New York City, was on brief, for amicus curiae the N.A.A.C.P. Legal Defense and Educational Fund, Inc.

Collot Guerard, Washington, D. C., was on supplemental memorandum of amicus curiae Nat. Organization for Women National Women's Political Caucus Women's Legal Defense Fund.

J. Roger Wollenberg, with whom Sally Katzen, and John H. Harwood, II, Washington, D. C., were on memorandum in response to a Question Raised in the Dept. of Justice amicus brief and on the Substituted Supplemental Memorandum of intervenor CBS, Inc.

Ann Aldrich, Cleveland, Ohio, for Nat. Black Media Coalition and Nat. Latino Media Coalition as amicus curiae.

Before WRIGHT, Chief Judge, and BAZELON, McGOWAN, TAMM, LEVENTHAL, ROBINSON, MacKINNON, ROBB and WILKEY, Circuit Judges.

Opinion for the Court filed by WILKEY, Circuit Judge.

Concurring opinion filed by BAZELON, Circuit Judge.

Opinion dissenting in part filed by SPOTTSWOOD W. ROBINSON, III, Circuit Judge.

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WILKEY, Circuit Judge:

These cases require us to consider once again the extent to which the Federal Communications Commission (FCC) must investigate broadcasters' equal employment performance before it renews their broadcast licenses. 1 The FCC renewed the licenses of stations KCBS (AM), San Francisco, California, 2 and KONO (AM), San Antonio, Texas, 3 without holding a hearing concerning their alleged job discrimination. Chinese for Affirmative Action (CAA) and Bilingual Bicultural Coalition on Mass Media (BBC) 4 respectively challenge those renewals, contending principally that they should have been afforded discovery to gain facts to support their contention that hearings were required.

In Chinese, we affirm the FCC's license renewal order. In Bilingual II, 5 we conclude that the FCC had insufficient information to find that license renewal was in the public interest, and remand for further investigation of KONO's alleged employment bias. We decline to hold, however, that the FCC on remand must conduct further investigation by affording discovery to BBC. We hold, rather, that the FCC may conduct further investigation by any means it deems appropriate including but not limited to its own inquiries and discovery initiated by plaintiffs.

As becomes apparent in our discussion in Part II below ("Governing Principles"), the rationale we follow here has been formulated, analyzed and applied in several of our recent decisions. Most of the judges on this Court participated in one or more of the panels by which those decisions were rendered. Our opinion today, however, while in great part a recapitulation of principles by now established, is designed to state definitively the position of this Court on the issues raised and to govern related cases in the future.

I. BACKGROUND

A. Chinese. On 1 November 1974 (CAA filed a petition to deny the license renewal application of KCBS radio, 6 contending Inter alia that the station had failed to provide Asians with equal employment opportunities. CAA cited no instances of actual discrimination, and relied instead on a

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showing of statistical disparity. Asian-Americans comprise over 6% Of the population of the San Francisco-Oakland Standard Metropolitan Statistical Area (SMSA); 7 as CAA pointed out, however, KCBS' annual employment reports 8 revealed that during most of the 1971-74 license term only one of the station's 84 employees was Asian. In

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view of this disparity, CAA asked that KCBS be directed to answer CAA's 98-question "Employment Questionnaire," in order that it could better evaluate the station's affirmative action plan.

On 27 November 1974 CBS filed its Opposition. It explained that KCBS had in fact employed ten Asians during the 1971-74 license term, but that, for various reasons, nine of these workers were omitted from, or improperly listed in, its annual employment reports. 9 CBS said that the station currently employed five Asians, representing 6.1% Of its workforce, and argued that it should not be required to answer CAA's questionnaire, which it termed "extremely lengthy and burdensome." CAA replied on 20 December 1974, contending primarily that more information was needed about the Asians KCBS assertedly had employed during the expiring license term.

The FCC agreed with this contention. Accordingly, it requested on 23 September 1975 that KCBS provide, for the eight Asians not included in the annual reports, 10 dates of employment and termination, description of positions held, and national origin and sex. On 3 October 1975 CBS sent this information to the Commission; it said that the station then employed three Asians (two females and one male, representing 3.6% Of its workforce), and explained the circumstances under which several former Asian employees had left. 11 CAA received a copy of this response.

The FCC's decision was adopted on 21 October and released on 6 November 1975. The Commission found that KCBS had employed numerous Asians during the 1971-74 license term, and that the station's overall minority and female employment ratios approached parity with the percentages of minority group members and women in the San Francisco-Oakland SMSA. 12 Minorities (including Asians) and women, moreover, found substantial representation in the station's professional positions. 13 On these facts, the Commission held that KCBS had complied with the FCC's "EEO rules and policies": 14

The combination of licensee's current performance in hiring and promotion, as reflected on the 1975 annual employment report, and its explanation for the low numbers of Asian Americans appearing on reports for 1971-74, suffice to show that KCBS' EEO results numbers of protected-group employees, viewed in the light of an affirmative action program are within a zone of reasonableness, and that its past record, while characterized by high job turnover, reflects a willingness to hire minority individuals.

The Commission therefore without a hearing granted CBS' license renewal application for a three-year term; CAA's request for discovery was denied.

B. Bilingual II. On 21 July 1974 BBC filed a petition to deny the license renewal

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application of KONO radio, contending Inter alia that the station discriminated against Mexican-Americans in its employment practices. Like CAA, BBC cited no instances of intentional discrimination and relied upon a statistical analysis of the station's recent employment record. Although Mexican-Americans made up 44% Of the population of the San Antonio SMSA, the percentage of Mexican-Americans in KONO's workforce was only 16% In 1974 and 17% In 1975. BBC asked the FCC for permission to take discovery, by depositions and interrogatories, to determine the underlying reasons for these employment disparities. Subsequent pleadings filed by KONO and BBC disputed the need for discovery and the interpretation to be accorded the conceded statistical disparities. KONO contended that its minority employment percentages fell within a "zone of reasonableness; " 15 BBC contended that the disparities were so egregious as to constitute Prima facie evidence of employment discrimination.

The FCC's decision was adopted on 17 July and released 5 August 1975. The Commission first examined the station's employment statistics and concluded that they fell outside the "zone of reasonableness" in both 1974 and 1975. 16...

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