110 UNIVERSITY OF ILLINOIS LAW REVIEW [Vol. 2000 acks even the pretense of some overarching goal or objective. Instead, the Commission's policies point in all directions of the compass, constituting a se ries of independent, self-justifying means rather than logical attempts to further some articulable regulatory end. 26 Notwithstanding this abundant lack of clarity, the federal courts traditionally have deferred to the Commission's various attempts to pursue the public interest goal of diversity. 2 The result is an ambigu ous policy without focus or direction; the kind of policy that one would expect in the absence of bu reaucratic accountability or serious judicial scru tiny There is now reason to believe that this state of affairs may be coming to an end. In April 1998, the Court of Appeals for the District of Columbia Circuit struck down the Commission's equal employment opportunity (EEO) guidelines. 2 Although the court rested its holding on Adarand and equal protection principles, 3o it also registered its displeasure with he Commission's attempts to justify the EEo guide lines on diversity grounds. Judge Laurence Silberman not only questioned the Commission's assertion ofa link between race and program diversity but also sug gested that the Commission had failed to define the goal of diversity in a minimally coherent fashion. 31 In another relatively recent case, Judge Richard Pos ner, rejecting the Commission's financial interest and syndication rules as arbitrary and capricious, similarly observed that while the word diversity ap 26. See generally Lili Levi, Reflections on the FCC's Recent Approach to Structural Regulation of the Electronic Mass Media, 52 Fed.ComM.l.j. 581, 582-94 (2000)(describing and critiquing the Commission's various ef forts to promote diversity and competition through structured regulation of the commercial broadcasting industry) 27. See, e. g, Metro Broad, v. FCC, 497 U.s. at 596: Red lion 395 U.s. at 396: National Broad. Co. v. United States, 319 U.s. 190( 28. See Lutheran Church-Missouri Synod v. FCC, 141 F3d 344, 356 arand Constructors, Inc. v. Pena, 515 u.s. 200(1995) 30. See Lutheran Church-Missouri Synod, 141 F 3d at 351-56 31. See id. at 355-56 ( It is at least understandable why the Commission would seek station to station differences, but its purported goal of single station all things to all people makes no sense. " )i see also Cap tal Cities/ABC, Inc. v. FCC, 29 F 3d 309, 311 (7th cir. 1994)(dismissing the Commission's attempt to justify its financial interest and syndication rules or ram diversity grounds): Schurz Comm, Inc. v. FCC, 982 F 2d 1043,1045-46,1050-52,1054(7 th cir.1992)(same)
KROTO.DOC 12/07/00 9:35 AM 110 UNIVERSITY OF ILLINOIS LAW REVIEW [Vol. 2000 lacks even the pretense of some overarching goal or objective. Instead, the Commission’s policies point in all directions of the compass, constituting a series of independent, self-justifying means rather than logical attempts to further some articulable regulatory end.26 Notwithstanding this abundant lack of clarity, the federal courts traditionally have deferred to the Commission’s various attempts to pursue the public interest goal of diversity.27 The result is an ambiguous policy without focus or direction; the kind of policy that one would expect in the absence of bureaucratic accountability or serious judicial scrutiny. There is now reason to believe that this state of affairs may be coming to an end. In April 1998, the U.S. Court of Appeals for the District of Columbia Circuit struck down the Commission’s equal employment opportunity (EEO) guidelines.28 Although the court rested its holding on Adarand29 and equal protection principles,30 it also registered its displeasure with the Commission’s attempts to justify the EEO guidelines on diversity grounds. Judge Laurence Silberman not only questioned the Commission’s assertion of a link between race and program diversity but also suggested that the Commission had failed to define the goal of diversity in a minimally coherent fashion.31 In another relatively recent case, Judge Richard Posner, rejecting the Commission’s financial interest and syndication rules as arbitrary and capricious, similarly observed that “ while the word diversity ap- 26. See generally Lili Levi, Reflections on the FCC’s Recent Approach to Structural Regulation of the Electronic Mass Media, 52 FED. COMM. L.J. 581, 582–94 (2000) (describing and critiquing the Commission’s various efforts to promote diversity and competition through structured regulation of the commercial broadcasting industry). 27. See, e.g., Metro Broad., v. FCC, 497 U.S. at 596; Red Lion Broad., 395 U.S. at 396; National Broad. Co. v. United States, 319 U.S. 190 (1943). 28. See Lutheran Church-Missouri Synod v. FCC, 141 F.3d 344, 356 (D.C. Cir. 1998). 29. Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995). 30. See Lutheran Church-Missouri Synod, 141 F.3d at 351-56. 31. See id. at 355-56 (“ It is at least understandable why the Commission would seek station to station differences, but its purported goal of making a single station all things to all people makes no sense.” ); see also Capital Cities/ABC, Inc. v. FCC, 29 F.3d 309, 311 (7th Cir. 1994) (dismissing the Commission’s attempt to justify its financial interest and syndication rules on program diversity grounds); Schurz Comm., Inc. v. FCC, 982 F.2d 1043, 1045-46, 1050-52, 1054 (7th Cir. 1992) (same)
No.3] ENHANCING THE SPECTRUM 111 pears with incantatory frequency in the Commission's pinion, it is never defined. The federal courts are not alone in their skeptic- cism about the Commission's quest for diversity. Le al scholars have also attacked the commission's di versity-based policies. Some commentators have gone so far as to call for an end to the commission's di versity efforts in favor of a free-market paradigm for broadcast regulation. 34 Such an approach is, how- ceptively att Commission's policies may be ill-considered- perhaps even incoherent- the objective of avoiding undue con centrations of media power is, and for the foresee able future will remain, critically important manifestations of Diversit As noted above, the Commission has described its efforts to promote diversity as ongoing attempts to achieve viewpoint, outlet, and source diversity with the broadcast media. 35 In its own way, each of the regulatory manifestations of the diversity goal sig nificantly tax the broadcast industry- including a station's broad strategic business decisions and its day-to-day operations. 36 It is questionable whether these efforts meaningfully advance their stated justi fications wpoint Diversity In 1969, the Commission promulgated rules to fur- ther its policy equal employment opportunit. (EEO). These rules imposed two basic obligations on 33. See KRATTENMAKER PowE, supra note 3, at 59-101: Chen, supra note 3, at 1440-58: J. Gregory sidak, Telecommunications in Jericho, 81 CAL. L. REV. 1993) e PETER HUBER, LAW AND DISORDER IN CYBERSPACE 44-45, ote 3, at 1486-1502: Sidak, supra note 33, at 1237-38 upra note 18, at 11, 302 n1 (separate statement of Commis- d w. Furchtgott-Roth) 10-20and panying text 36. See CCV 436U.S.775,780 (1978)(characteriz egulations as " stringent restrictions"): Lutheran hurch-Missouri Synod v. FCC, 141 F 3d 344, 349-50(D.c. cir. 1998)(observ ing that the EEO program increases "an already significant regulatory bu den" and that the regulations " can be burdensome") 37. See Petition for Rulemaking to Require Broadcast Licensees to show
KROTO.DOC 12/07/00 9:35 AM No. 3] ENHANCING THE SPECTRUM 111 pears with incantatory frequency in the Commission’s opinion, it is never defined.” 32 The federal courts are not alone in their skepticism about the Commission’s quest for diversity. Legal scholars have also attacked the Commission’s diversity-based policies.33 Some commentators have gone so far as to call for an end to the Commission’s diversity efforts in favor of a free-market paradigm for broadcast regulation.34 Such an approach is, however, deceptively attractive. Although some of the Commission’s policies may be ill-considered— perhaps even incoherent— the objective of avoiding undue concentrations of media power is, and for the foreseeable future will remain, critically important. B. Manifestations of Diversity As noted above, the Commission has described its efforts to promote diversity as ongoing attempts to achieve viewpoint, outlet, and source diversity within the broadcast media.35 In its own way, each of the regulatory manifestations of the diversity goal significantly tax the broadcast industry— including a station’s broad strategic business decisions and its day-to-day operations.36 It is questionable whether these efforts meaningfully advance their stated justifications. 1. Viewpoint Diversity In 1969, the Commission promulgated rules to further its policy of equal employment opportunity (EEO).37 These rules imposed two basic obligations on 32. Schurz Comm., 982 F.2d at 1054. 33. See KRATTENMAKER & POWE, supra note 3, at 59-101; Chen, supra note 3, at 1440-58; J. Gregory Sidak, Telecommunications in Jericho, 81 CAL. L. REV. 1209, 1228-38 (1993). 34. See PETER HUBER, LAW AND DISORDER IN CYBERSPACE 44-45, 69-75, 156-59, 178- 81, 204-05 (1997); KRATTENMAKER & POWE, supra note 3, at 278-96; Chen, supra note 3, at 1486-1502; Sidak, supra note 33, at 1237-38; see also 1998 Biennial Review, supra note 18, at 11,302 n.1 (separate statement of Commissioner Harold W. Furchtgott-Roth). 35. See supra notes 10–20 and accompanying text. 36. See FCC v. National Citizens Comm. for Broad., 436 U.S. 775, 780 (1978) (characterizing regulations as “ stringent restrictions” ); Lutheran Church-Missouri Synod v. FCC, 141 F.3d 344, 349-50 (D.C. Cir. 1998) (observing that the EEO program increases “ an already significant regulatory burden” and that the regulations “ can be burdensome” ). 37. See Petition for Rulemaking to Require Broadcast Licensees to Show
112 UNIVERSITY OF ILLINOIS LAW REVIEW [Vol. 2000 broadcasters. First, broadcasters could not discrimi- ate in employment against any person because of race, color, religion, national origin, or sex Second, stations had to adopt an affirmative action program targeted at ensuring proper recruitment and retention of female and minority employees. According to the Commission's pre-2000 EEO t stations must establish, maintain, and carry out a positive continuing program of specific practices de signed to ensure equal opportunity in every aspect of station employment policy and practice. "The rules required stations to target minority organizations and other potential sources of minorities for employment recruitment purposes. 2 To monitor compliance, stations with five or more full-time employees had to file a report with the Commission documenting the number of minority referrals received from [minority sources]."4The Commission also compared the compo sition of the station's work force with the t labor f to dete the fol owing guidelines were met [S]tations with five to ten full-time employees meet the guidelines if the proportion of minority and female representation on their overall staffs Nondiscrimination in Their Employment Practices, 18 F CC 2d 240, 243, 245 (para. 6, app. A)(1969) (report and order)i see also Petition for Rulemak ing to Require Broadcast Licensees to Show Nondiscrimination in Their Em- ployment Practices, 23 F.C. C. 2d 430, 435 (app. A)(1970)(report and o der); Petition for Rulemaking to Require Broadcast Licensees to show Nondiscrimination in Their Employment Practices, 13 F.C.C. 2d 766 (196 memorandum opinion and order)i Leigh Hermance, Comment, Constitutionality of Affirmative Action Regulations Imposed Under the Cable Communications Policy Act of 1984, 35 CATH. U. L. REv. 807, 812-15 (describing the early history 38.47C.F.R.s73.2080(a)(1999) 9. See id.§73.2080(b)-(c 40. On January 21, 2000, the Commission significantly revised its EEO rules. See Review of the Commissions Broadcast and Cable Equal Opportu- nity Rules and Policies, 15 F.c. C.R. 2329.(2000)(report and order). For a consideration of the con of these new rules, see infra notes 67-73 and less remain important because of their significance lo policies neverthe versity in broadcasting 47 42. See id.5573.2080(c)(2)-(3) 3. Streamlining Broadcasting EEO Rule and Policis EEO Fo ding Section 1.80 o C.R.5154,515 roposed rulemaking) (hereinafter Streamlining Broadcast EEo Rul 5159-60( paras.8-11)
KROTO.DOC 12/07/00 9:35 AM 112 UNIVERSITY OF ILLINOIS LAW REVIEW [Vol. 2000 broadcasters. First, broadcasters could not discriminate in employment against any person “ because of race, color, religion, national origin, or sex.” 38 Second, stations had to adopt an affirmative action program targeted at ensuring proper recruitment and retention of female and minority employees.39 According to the Commission’s pre-2000 EEO rules,40 broadcast stations must “ establish, maintain, and carry out a positive continuing program of specific practices designed to ensure equal opportunity in every aspect of station employment policy and practice.” 41 The rules required stations to target minority organizations and other potential sources of minorities for employment recruitment purposes.42 To monitor compliance, stations with five or more full-time employees had to file a report with the Commission documenting “ the number of minority . . . referrals received from [minority sources].” 43 The Commission also compared “ the composition of the station’s work force . . . with the relevant labor force” 44 to determine whether the following guidelines were met: [S]tations with five to ten full-time employees meet the guidelines if the proportion of minority and female representation on their overall staffs Nondiscrimination in Their Employment Practices, 18 F.C.C.2d 240, 243, 245 (para. 6, app. A) (1969) (report and order); see also Petition for Rulemaking to Require Broadcast Licensees to Show Nondiscrimination in Their Employment Practices, 23 F.C.C. 2d 430, 435 (app. A) (1970) (report and order); Petition for Rulemaking to Require Broadcast Licensees to Show Nondiscrimination in Their Employment Practices, 13 F.C.C.2d 766 (1968) (memorandum opinion and order); Leigh Hermance, Comment, Constitutionality of Affirmative Action Regulations Imposed Under the Cable Communications Policy Act of 1984, 35 CATH. U. L. REV. 807, 812-15 (describing the early history of the Commission’s EEO rules). 38. 47 C.F.R. § 73.2080(a) (1999). 39. See id. § 73.2080(b)–(c). 40. On January 21, 2000, the Commission significantly revised its EEO rules. See Review of the Commission’s Broadcast and Cable Equal Opportunity Rules and Policies, 15 F.C.C.R. 2329 (2000) (report and order). For a consideration of the content of these new rules, see infra notes 67-73 and accompanying text. The Commission’s old EEO rules and policies nevertheless remain important because of their significance in understanding the Commission’s overarching effort to promote diversity in broadcasting. 41. 47 C.F.R. § 73.2080(b) (1999). 42. See id. §§ 73.2080(c)(2)–(3). 43. Streamlining Broadcasting EEO Rule and Policies Vacating the EEO Forfeiture Policy Statement and Amending Section 1.80 of the Commission’s Rules to Include EEO Forfeiture Guideline, 11 F.C.C.R. 5154, 5159 (paras. 8-9) (1996) (order and notice of proposed rulemaking) [hereinafter Streamlining Broadcast EEO Rule]. 44. Id. at 5159-60 (paras. 8-11)
3] ENHANCING THE SPECTRUM 113 least 509 of that relevant labor force, and on their upper-level staff is at least 25 of that of the relevant labor force. stations with 11 lines if the proportion of minority and female representation is at least 509 of that of the relevant labor force for both overall and upper evel Job categories In short,[e] very broadcast station must develop a fairly elaborate EEo program and document its com- pliance. Those requirements involved paperwork, ments."4 The entire program was built on the notion that stations should aspire to a workforce that at tains, or at least approaches, proportional represen tation In 1980, the Commission issued revised processing guidelines disclosing the criteria used to select sta tions for an in-depth EEo program review when those stations licenses came up for renewal. 9 Those crite- ria were based solely on a station's ability to demon- strate that it was satisfying certain statistical re quirements other words, the Commission had established numerical goals that, if met, would mean that a broadcaster was not subject to an onerous, in depth EEo review In 1987, the Commission changed its policy, osten- 45.Id.at5160(para.11) 46. Lutheran Church-Missouri Synod v. FCC, 141 F3d 344, 350(D.c.Cir 1998), reh'g and reh'g en banc denied, 154 F3d 487 (D.c. Cir. 1998)(en banc); see also47c.F.R.5573.2080(b)-(c)(1999 47. Lutheran Church-Missouri Synod, 141 F 3d at 350: see also Monterey Mechanical Co. v. Wilson, 125 F 3d 702, 707(9th Cir. 1997) 48. Lutheran Church-Missouri Synod, 141 F 3d at 352 See In re EEO Processing Guidelines for Broadcast Renewal Applicants 46 Rad. Reg. 2d (P&F) 1693, 1693(1980) [hereinafter EEO Processing Guide lines], reconsideration denied, 79 F.C. C 2d 922 (1980)i see Amendment of art 73 of the Commission Rules Concerning Equal Employment Opportunity in the Broadcasting, Radio, and Television servit 3967,3973-7 (paras. 44-50)(1987)(report and order) [hereinafter Part 73 Amendment] 50. Essentially the Commission required that a station recruit and retain workforce that contained minority persons in numbers equal to 508 of their total numbers within the local community. Hence, if Hispanics comprised 12 of the local community's population, then at least 68 of the a le ion's employees must be Hispanic to avoid full review of its complianc with the EEo requirements. See EEO Processing Guidelines, supra note 49,at art 73 23, 44-50); see also Lutheran Church-Missouri Synod, 141 E 3d at 353 (noting regulations m operated as a 'de facto hiring quota")
KROTO.DOC 12/07/00 9:35 AM No. 3] ENHANCING THE SPECTRUM 113 is at least 50% of that relevant labor force, and on their upper-level staff is at least 25% of that of the relevant labor force. Stations with 11 or more full-time employees meet the guidelines if the proportion of minority and female representation is at least 50% of that of the relevant labor force for both overall and upperlevel job categories.45 In short, “ [e]very broadcast station must develop a fairly elaborate EEO program and document its compliance.” 46 Those requirements involved “ paperwork, monitoring, and spending more money on advertisements.” 47 The entire program was “ built on the notion that stations should aspire to a workforce that attains, or at least approaches, proportional representation.” 48 In 1980, the Commission issued revised processing guidelines disclosing the criteria used to select stations for an in-depth EEO program review when those stations’ licenses came up for renewal.49 Those criteria were based solely on a station’s ability to demonstrate that it was satisfying certain statistical requirements.50 In other words, the Commission had established numerical goals that, if met, would mean that a broadcaster was not subject to an onerous, indepth EEO review.51 In 1987, the Commission changed its policy, osten- 45. Id. at 5160 (para. 11). 46. Lutheran Church-Missouri Synod v. FCC, 141 F.3d 344, 350 (D.C. Cir. 1998), reh’g and reh’g en banc denied, 154 F.3d 487 (D.C. Cir. 1998) (en banc); see also 47 C.F.R. §§ 73.2080(b)–(c) (1999). 47. Lutheran Church-Missouri Synod, 141 F.3d at 350; see also Monterey Mechanical Co. v. Wilson, 125 F.3d 702, 707 (9th Cir. 1997). 48. Lutheran Church-Missouri Synod, 141 F.3d at 352. 49. See In re EEO Processing Guidelines for Broadcast Renewal Applicants, 46 Rad. Reg. 2d (P&F) 1693, 1693 (1980) [hereinafter EEO Processing Guidelines], reconsideration denied, 79 F.C.C.2d 922 (1980); see Amendment of Part 73 of the Commission Rules Concerning Equal Employment Opportunity in the Broadcasting, Radio, and Television Services, 2 F.C.C.R. 3967, 3973-74 (paras. 44-50) (1987) (report and order) [hereinafter Part 73 Amendment]. 50. Essentially the Commission required that a station recruit and retain a workforce that contained minority persons in numbers equal to 50% of their total numbers within the local community. Hence, if Hispanics comprised 12% of the local community’s population, then at least 6% of the a local station’s employees must be Hispanic to avoid full review of its compliance with the EEO requirements. See EEO Processing Guidelines, supra note 49, at 1693. 51. See Part 73 Amendment, supra note 49, at 3969-70, 3973-74 (paras. 17- 23, 44-50); see also Lutheran Church-Missouri Synod, 141 F.3d at 353 (noting that these regulations “ operated as a ‘de facto hiring quota’” )
114 UNIVERSITY OF ILLINOIS LAW REVIEW [Vol. 2000 sibly to de-emphasize statistical compliance. Al though the Commission continued to place significant reliance on a station's hiring statistics nounced that it would also consider the station's self-description of its EEo program and policies, any other complaints filed against the station, and any EEO natte pertinent information. 3 At least as a formal matter, the Commission was abandoning a numbers-based enforcement scheme. As a practical matter, it remained reasonably clear to most licensees that race-based statistical analyses would continue to constitute an important component of the Commission's EEo enforce under the earlier iterat EEo rules, if the Commission concluded that a station failed to comply with its EEo rules and policies, the station's application for license renewal could be de nied or a panoply of lesser sanctions brought to bear, 55 In 1996, the Commission proposed new EEo rule that would exempt from the reporting requirements those stations that satisfy an as-yet-undetermined benchmark. 56 Under this approach Qualifying stations would remain subject to the EEo rule and to reporting requirements regardin their employment profile and other EEo informa- tion called for as part of the renewal applica- tion but could elect not to file, submit, or r tain detailed job-by-job recruitment and hiring records if their employment profile for overall and upper-level positions met certain benchmarks for most of the licensed term. 5 In essence, the benchmark would expressly serve as a safe station Yet the current Eeo rules as interpreted by the Commission and its staff, al- ready effectively established a numerical safe harbor 52. See Part 73 Amendment, supra note 49, at 3969-70, 3973-74(para 23,44-501 53.500310 EEo Rule, supra note 43, at 5160-61 as.11-1 55. The less draconian options open to the Commission included short-term the imposition of special reporting requirements during the renewal period, or the imposition of monetary penalties (or a "forfeiture in Commission parlance). See Broadcast and cable EEo Review, supra note 12 at 23006-8(para 56. See Streamlining Broadcast EEO Rule, supra note 43, at 5 ( paras.24-27)
KROTO.DOC 12/07/00 9:35 AM 114 UNIVERSITY OF ILLINOIS LAW REVIEW [Vol. 2000 sibly to de-emphasize statistical compliance.52 Although the Commission continued to place significant reliance on a station’s hiring statistics, it announced that it would also consider the station’s self-description of its EEO program and policies, any EEO complaints filed against the station, and any other pertinent information.53 At least as a formal matter, the Commission was abandoning a numbers-based enforcement scheme. As a practical matter, it remained reasonably clear to most licensees that race-based statistical analyses would continue to constitute an important component of the Commission’s EEO enforcement regime. As under the earlier iterations of its EEO rules, if the Commission concluded that a station failed to comply with its EEO rules and policies, the station’s application for license renewal could be denied54 or a panoply of lesser sanctions brought to bear.55 In 1996, the Commission proposed new EEO rules that would exempt from the reporting requirements those stations that satisfy an as-yet-undetermined benchmark.56 Under this approach: [Q]ualifying stations would remain subject to the EEO rule and to reporting requirements regarding their employment profile and other EEO information called for as part of the renewal application but could elect not to file, submit, or retain detailed job-by-job recruitment and hiring records if their employment profile for overall and upper-level positions met certain benchmarks for most of the licensed term.57 In essence, the benchmark would expressly serve as a safe harbor for stations. Yet the current EEO rules, as interpreted by the Commission and its staff, already effectively established a numerical safe harbor 52. See Part 73 Amendment, supra note 49, at 3969-70, 3973-74 (paras. 17- 23, 44-50). 53. See id. at 3974 (paras. 48-50). 54. See Streamlining Broadcast EEO Rule, supra note 43, at 5160-61 (paras. 11-15). 55. The less draconian options open to the Commission included short-term license renewal, the imposition of special reporting requirements during the renewal period, or the imposition of monetary penalties (or a “ forfeiture” in Commission parlance). See Broadcast and Cable EEO Review, supra note 12, at 23006-8 (paras. 7-10). 56. See Streamlining Broadcast EEO Rule, supra note 43, at 5166-67 (paras. 24-27). 57. Id