MD/DC/DE Broadcasters Assoc. v. Fed. Commun. Comm'n
| Decision Date | 16 January 2001 |
| Docket Number | No. 00-1094,00-1094 |
| 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 |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
[Copyrighted Material Omitted]
On Petitions for Review of an Order of the Federal Communications Commission
Barry H. Gottfried argued the cause for petitioners State Broadcasters Associations. With him on the briefs were Richard R. Zaragoza and Kathryn R. Schmeltzer. David D. Oxenford, Jr. entered an appearance.
Shelby D. Green argued the cause and filed the briefs for petitioner Office of Communication, Inc., United Church of Christ.
Christopher J. Wright, General Counsel, Federal Communications Commission, argued the cause for respondents. With him on the brief were Daniel M. Armstrong, Associate General Counsel, C. Grey Pash, Jr., Counsel, Bill L. Lee, Assistant Attorney General, U.S. Department of Justice, and Lisa W. Edwards, Attorney.
David Earl Honig, Elliot M. Mincberg, Frederick C. Schafrick and Thomas J. Mikula were on the brief for intervenors Minority Media and Telecommunications Council, et al.
Angela J. Campbell was on the brief for intervenor National Organization for Women, et al.
Tom W. Davidson, Daniel L. Brenner, Neal M. Goldberg, Michael S. Schooler, David L. Nicoll, Dominique T. Bravo, Richard B. Nettler and Charles A. Hunnicutt were on the brief for amici curiae Radio One, Inc. et al. Thomas P. Powers and Anthony T. Pierce entered appearances.
Julie Nepveu and Theodore C. Whitehouse were on the brief for amici curiae The Leadership Conference on Civil Rights and National Council of the Churches of Christ. Andrew J. Schwartzman entered an appearance. Christopher M. Curran and Eduardo Pena were on the brief for amicus curiae Congressional Black Caucus.
Before: Ginsburg, Sentelle and Henderson, Circuit Judges.
Opinion for the Court filed by Circuit Judge Ginsburg.
Fifty state broadcasters associations (Broadcasters) petition for review of an Equal Employment Opportunity (EEO) rule promulgated by the Federal Communications Commission. The Broadcasters argue that the rule violates: (1) the Administrative Procedure Act by creating an arbitrary and capricious reporting burden; and (2) the equal protection component of the Due Process Clause of the Fifth Amendment to the Constitution of the United States by granting preferences to women and minorities. The United Church of Christ (UCC) petitions for review of the same EEO rule, arguing that it violates the APA because, without giving a reasoned explanation, the agency changed its policy of requiring broadcasters to recruit women and minorities.
We hold first that the Broadcasters fail to substantiate their claim that the rule is arbitrary and capricious. We further hold that the rule does 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 and is therefore unconstitutional. Because we find that the unconstitutional portion of the rule is not severable, we vacate the rule in its entirety and dismiss the petition of the UCC as moot.
The Federal Communications Commission draws its authority to issue EEO rules from the Communications Act of 1934, 47 U.S.C. § 151 et seq., which authorizes the Commission, in considering whether to grant a license or renewal to a broadcast station, to determine "whether the public interest, convenience, and necessity will be served by the granting of such application." Id. at § 309(a). In 1969 the Commission determined that it would not serve the public interest to grant licenses to broadcasters with discriminatory hiring practices. The Commission therefore prohibited licensees from discriminating in employment on the basis of race or sex and required them to establish EEO programs. See Petition for Rulemaking to Require Broadcast Licensees to Show Nondiscrimination in Their Employment Practices, 18 F.C.C. 2d 240 (1969). In 1992 the Congress prohibited the Commission from "revis[ing] ... the regulations concerning equal employment opportunity ... as such regulations apply to television broadcast station licensees." 47 U.S.C. § 334(a)(1).
The regulations then in effect required all broadcast licensees -both radio and television stations -not only to refrain from invidious discrimination but also to "establish, maintain, and carry out a positive continuing program of specific practices designed to ensure equal opportunity and nondiscrimination in every aspect of station employment policy and practice." 47 C.F.R. § 73.2080(b). The regulations required stations to seek out sources likely to refer female and minority applicants for employment, to track the source of each referral, and to record the race and sex of each applicant and of each person hired. If these data indicated that a station employed a lower percentage of women and minorities than were employed in the local workforce, then the Commission would take that into account in determining whether to renew the station's license.
In Lutheran Church-Missouri Synod v. FCC, 141 F.3d 344 (D.C. Cir. 1998), we held that the Commission's EEO rule was an unconstitutional race-based classification. (The question whether the rule was an unconstitutional sex-based classification was not before the court.) We held first that the rule was subject to strict constitutional scrutiny because it was "built on the notion that stations should aspire to a workforce that attains, or at least approaches, proportional [racial] representation" and "oblige[d] stations to grant some degree of preference to minorities in hiring." Id. at 352-53. We further held that the Commission's sole rationale for its rule, promoting "diversity of programming," was not a compelling governmental justification; the Commission had expressly abjured preventing employment discrimination as a goal of its EEO regulation. Id. at 354-55. Accordingly, we remanded the matter to the Commission to determine whether it had a compelling governmental interest (such as the Justice Department had urged as an amicus curiae, in preventing discrimination) to support its regulation of employment practices in the broadcast industry. Id. at 356.
On remand, the Commission suspended the EEO rule in its entirety and issued a Notice of Proposed Rulemaking soliciting comments on a draft replacement rule. Review of the Commission's Broadcast Equal Employment Opportunity Rules and Policies, 13 F.C.C.R. 23004 (1999). Following the comment period the Commission concluded that word-ofmouth recruiting was the single greatest barrier to equal employment in the broadcast industry because it tends to replicate the current composition of the workforce. Accordingly, the Commission issued a new EEO rule requiring licensees to achieve a "broad outreach" in their recruiting efforts. Review of the Commission's Broadcast Equal Employment Opportunity Rules and Policies, 15 F.C.C.R. 2329, p 3 (2000) (R&O). To this end, the new EEO rule states that a licensee must make a good faith effort to disseminate widely any information about job openings and, in order to "afford[ ] broadcasters flexibility in designing their EEO programs," the rule allows them to select either of two options entailing "supplemental measures" for accomplishing that goal. R&O at p 78. Under Option A the licensee (if it has more than ten employees) must undertake four approved recruitment initiatives in each two-year period; qualifying initiatives are specified by the Commission in some detail, as can be seen from the list reproduced in the margin.* A licensee that selects Option A need not report the race and sex of job applicants. Under Option B the licensee may design its own outreach program but must report the race and sex of each job applicant and the source by which the applicant was referred to the station. See 47 C.F.R. § 73.2080(d).
In addition, the new EEO rule reinstates the requirement that each licensee file an Annual Employment Report. See 47 C.F.R. § 73.2080(i). That report, the filing of which the Commission had suspended following the decision in Lutheran Church, requires the station to identify each employee by race and sex. The Commission stated that it would use the data from the Annual Employment Reports only to monitor industry trends and not (as it had under the prior EEO rule) to screen renewal applications or to assess a licensee's compliance with its EEO obligations. R&O at p p 6, 225-226.
The United Church of Christ filed a petition to review the new EEO rule in the Second Circuit. The Broadcasters filed a petition for review in this court. The Second Circuit transferred the UCC's petition here and the two cases were consolidated.
The Broadcasters argue that the new EEO rule favors women and minorities and, in so doing, is arbitrary and capricious as well as unconstitutional. The UCC argues that the new rule is arbitrary and capricious because the Commission departed, without explanation, from its prior policy of requiring broadcasters to recruit women and minorities.
The Broadcasters argue the new rule is arbitrary and capricious for two reasons, neither of which is persuasive. The Broadcasters first attack the Commission's claim, in the preamble to the new rule, that the rule will promote "programming diversity," R&O at p 4; they point out that this court questioned the legitimacy of such a goal in Lutheran Church. See 141 F.3d at 354 (). On review, however, the Commission...
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