No.3] ENHANCING THE SPECTRUM 115 for broadcasters, albeit not expressly Followinc gnificant judicial setback in the U.s. Court of Appeals for the District of Columbia Circuit, the Commission issued another notice of pro n attempt to rehabilitate its eeo rules and policies in the Commission argued that it the wake of ade believe [d] that a Commission recruitment policy that operates only to enhance the pool of candidates for a b opening will not subject anyone to unequal treat ment on the basis of race and will not raise equal protection concerns." After citing evidence of con- gressional approval of its outreach efforts, the Com- mission proposed to modify its eeo program by abandon ing the statistical parity requirements contained in its processing guidelines stress that there is no maximum, minimum, or even optimal level of sity in employment. Although the Commission stubbornly refuses to abandon its diversity rationale to support its revised EEO program, 3 it wisely adopted- as an alternative justification for the rules- the deterence of both conscious and unconscious forms of discrimination by Commission 1 Mor the commission′si troduction to the proposed new rules also invokes non discrimination as the principal motivation for at tempting to retain the policy. The Commission also describes its proposed policy as an antidiscrimination ule, rather than a type of diversity-enhancement n January 20, 2000, Commission adopted are port and order revising eEo guidelines to bring them into compliance with the mandate of the Lutheran Church opinion. 7 The report and order largely 58. See Lutheran Church-Missouri Synod v. FCC, 141 F 3d 344(D.C.Cir 1998) ee Broadcast Cable EEO Review, supra note 12, at 23, 008-12 (paras d.at23,012(para.21) See id. at 23,014-23 26-35) 63. See id.at23,019-22 eeid.at23,025-2 5. See id.at23,005-06 F 9-60) 1-6) 6. See id.at23,013-14( paras.24-25) ee Review of the Commissions Broadcast and cable Equal Employment Opportunity Rule and Policies and Termination of the EEo Streamlining Pro- ceeding, 15 F C.C.R. 2329(2000)(report and order)
KROTO.DOC 12/07/00 9:35 AM No. 3] ENHANCING THE SPECTRUM 115 for broadcasters, albeit not expressly. Following a significant judicial setback in the U.S. Court of Appeals for the District of Columbia Circuit,58 the Commission issued another notice of proposed rulemaking in an attempt to rehabilitate its EEO rules and policies in the wake of Adarand.59 Repeating its earlier position, the Commission argued that it “ believe[d] that a Commission recruitment policy that operates only to enhance the pool of candidates for a job opening will not subject anyone to unequal treatment on the basis of race and will not raise equal protection concerns.” 60 After citing evidence of congressional approval of its outreach efforts,61 the Commission proposed to modify its EEO program by abandoning the statistical parity requirements contained in its processing guidelines: “ We stress that there is no maximum, minimum, or even optimal level of diversity in employment.” 62 Although the Commission stubbornly refuses to abandon its diversity rationale to support its revised EEO program,63 it wisely adopted— as an alternative justification for the rules— the deterence of both conscious and unconscious forms of discrimination by Commission licensees.64 Moreover, the Commission’s introduction to the proposed new rules also invokes nondiscrimination as the principal motivation for attempting to retain the policy.65 The Commission also describes its proposed policy as an antidiscrimination rule, rather than a type of diversity-enhancement rule.66 On January 20, 2000, the Commission adopted a report and order revising the EEO guidelines to bring them into compliance with the mandate of the Lutheran Church opinion.67 The report and order largely tracks 58. See Lutheran Church-Missouri Synod v. FCC, 141 F.3d 344 (D.C. Cir. 1998). 59. See Broadcast & Cable EEO Review, supra note 12, at 23,008-12 (paras. 11-21). 60. Id. at 23,012 (para. 21). 61. See id. at 23,014-23 (paras. 26-35). 62. Id. at 23,028 (para. 67). 63. See id. at 23,019-22 (paras. 39-45). 64. See id. at 23,025-26 (paras. 59-60). 65. See id. at 23,005-06 (paras. 1-6). 66. See id. at 23,013-14 (paras. 24-25). 67. See Review of the Commission’s Broadcast and Cable Equal Employment Opportunity Rule and Policies and Termination of the EEO Streamlining Proceeding, 15 F.C.C.R. 2329 (2000) (report and order)
116 UNIVERSITY OF ILLINOIS LAW REVIEW [Vol. 2000 the notice of proposed rulemaking: it abandons numeri- cal benchmarks in favor of an open-ended recruitin obligation to seek out and hire well-qualified minori ties and women, coupled with extensive record keeping tions on the success (or failure of these efforts. The Commission takes great pains to emphasize that, in the case of those broadcaster who utilize applicant pool data, there is no require ment that the composition of applicant pools be pro- portionate to the composition of the local work force. 69 The Commission also asserts that the re- quired outreach measures do not require employers to take any action based on race, ethnicity, or gender and do not favor or disadvantage any job applicant based on his or her race, ethnicity, or gender., 70 To the extent that the Commission has abandoned irect reliance on statistical quotas or benchmarks, the revised EEo rules are largely responsive to the D. C. Circuit's mandate in Lutheran church. On the other hand, the Commission stubbornly continues to rely on the diversity rationale to support its revise Eo program. The new rules would stand a better chance of surviving judicial review if the Commission would simply abandon the diversity rationale as the basis for its EEo program and instead rely solely on preventing both conscious and unconscious forms of discrimination. 2 Simply put, the Commission would have advanced its cause more effectively had it straight- forwardly abandoned the diversity project as a princi Jan. 21, 2000, at A16 (describing the new EEo rules and the broadcasting in cast and Cable Equal Em portunity Rule and Policies and Termination of the EEO Streamlining Proceed ing,15 F.c.C.R. at 2378 (para. 120) 70. Id. at 2416 (para. 219): see also id. at 2417 (para. 222)("We have made it clear that there is no requirement of applicant pool 'proportiona ity' to the composition of the local work force, nor could there be, since mployers cannot control who applies for a position. ")i id. at 2418 (para 26)(" Moreover, having stated that we will not use the employment profile ata collected on Form 395 to assess compliance with our EEo rules, we will be legally foreclosed from doing s 71. See id.at2331,2345-46,2349-58( paras.2,41,48-62) 72. See, e.g., id. at 2419 (para. 228)(" Thus, we are confident that we can take steps to ensure that minorities and women are not either intention- ally or unthinkingly' denied an equal opportunity to compete for jobs in he broadcast and cable industries without treading on rights quaranteed by the Equal Protection Clause
KROTO.DOC 12/07/00 9:35 AM 116 UNIVERSITY OF ILLINOIS LAW REVIEW [Vol. 2000 the notice of proposed rulemaking: it abandons numerical benchmarks in favor of an open-ended recruiting obligation to seek out and hire well-qualified minorities and women, coupled with extensive record keeping and reporting obligations on the success (or failure) of these efforts.68 The Commission takes great pains to “ emphasize that, in the case of those broadcasters who utilize applicant pool data, there is no requirement that the composition of applicant pools be proportionate to the composition of the local work force.” 69 The Commission also asserts that the required outreach measures “ do not require employers to take any action based on race, ethnicity, or gender, and do not favor or disadvantage any job applicant based on his or her race, ethnicity, or gender.” 70 To the extent that the Commission has abandoned direct reliance on statistical quotas or benchmarks, the revised EEO rules are largely responsive to the D.C. Circuit’s mandate in Lutheran Church. On the other hand, the Commission stubbornly continues to rely on the diversity rationale to support its revised EEO program.71 The new rules would stand a better chance of surviving judicial review if the Commission would simply abandon the diversity rationale as the basis for its EEO program and instead rely solely on preventing both conscious and unconscious forms of discrimination.72 Simply put, the Commission would have advanced its cause more effectively had it straightforwardly abandoned the diversity project as a princi- 68. See id. at 2331-33, 2358-89 (paras. 2-9, 63-148), see also Neil A. Lewis, F.C.C. Revises Rule on Hiring of Women and Minorities, N.Y. TIMES, Jan. 21, 2000, at A16 (describing the new EEO rules and the broadcasting industry’s skeptical initial reaction to them). 69. Review of the Commission’s Broadcast and Cable Equal Employment Opportunity Rule and Policies and Termination of the EEO Streamlining Proceeding, 15 F.C.C.R. at 2378 (para. 120). 70. Id. at 2416 (para. 219); see also id. at 2417 (para. 222) (“ We have made it clear that there is no requirement of applicant pool ‘proportionality’ to the composition of the local work force, nor could there be, since employers cannot control who applies for a position.” ); id. at 2418 (para. 226) (“ Moreover, having stated that we will not use the employment profile data collected on Form 395 to assess compliance with our EEO rules, we will be legally foreclosed from doing so.” ). 71. See id. at 2331, 2345-46, 2349-58 (paras. 2, 41, 48-62). 72. See, e.g., id. at 2419 (para. 228) (“ Thus, we are confident that we can take steps to ensure that minorities and women are not either intentionally or ‘unthinkingly’ denied an equal opportunity to compete for jobs in the broadcast and cable industries without treading on rights guaranteed by the Equal Protection Clause.” )
No.3] ENHANCING THE SPECTRUM 117 reason for maintaining 73 Even in its most recent pronouncements on the sub- ject, including the newly revised EEo rules, the Com- mission continues to rest its eeo program (at least in part) on the viewpoint definition of diversity. Im- plicit i this position is the Commission's belief that by employing minorities at broadcast stations, minority viewpoints will be reflected in the stations programming. 5 There is good reason, however, to ques- tion the veracity of this proposition First, the Commission has, at least implicitly, based its position on an untested assumption that most individuals within a particular minority group gener- ally share a common editorial viewpoint. 6 Second,the Commission's approach also assumes that all employees at a given broadcast station, including janitorial staff (all employees fall within the EEo rules),have an impact on the viewpoints expressed in a station's programming. Both assumptions rest on questionable foundations n addition to its Eeo policies, the Commission has established four separate programs- two are still in effect today- to further its goal of enhancing viewpoint diversity by distributing licenses to those believed to hold unique editorial perspectives. These programs are lottery preferences, comparative hearing preferences, distress sales, and tax certificates The Federal Communications Act gives the Commis sion the power to grant broadcast licenses through a lottery, with additional chances given to minority groups. The relevant provision of the Communications Act defines minorities for this purpose as Blacks, See Lutheran Church-Missouri Synod v. ECC, 141 F3d 344, 354-56 (D. C. Cir. 1998) Review of the Commission's Broadcast and Cable Equal Em- ployment Opportunity Rule and Policies and Termination of the EEo Streamlin- ing Proceeding,15F.C.C.R.at2332,2336-37,2345,2349-58( paras.4,21, 75. See Review of the Comumission's Broadcast and Cable Equal Employment Opportunity Rule and Policies and Termination of the EEo Streamlinir ng Pro- ceeding, 15 F.C.C.R. at 2349-58 (paras. 48-62) 6. See infra notes 125-26 and accompanying t ee Lutheran Church-Missouri Synod, 141 F 3d at 354-5 8. See infra notes 82-84 and accompanying te 9. See infra notes 85-95 and accompanying text 80. See infra notes 96-101 and accompanying text 1. See infra notes 102-07 and accompanying text 82.See47u.s.c.s309(1)(1994)
KROTO.DOC 12/07/00 9:35 AM No. 3] ENHANCING THE SPECTRUM 117 pal reason for maintaining its EEO policies.73 Even in its most recent pronouncements on the subject, including the newly revised EEO rules, the Commission continues to rest its EEO program (at least in part) on the viewpoint definition of diversity.74 Implicit in this position is the Commission’s belief that by employing minorities at broadcast stations, minority viewpoints will be reflected in the station’s programming.75 There is good reason, however, to question the veracity of this proposition. First, the Commission has, at least implicitly, based its position on an untested assumption that most individuals within a particular minority group generally share a common editorial viewpoint.76 Second, the Commission’s approach also assumes that all employees at a given broadcast station, including janitorial staff (all employees fall within the EEO rules), have an impact on the viewpoints expressed in a station’s programming.77 Both assumptions rest on questionable foundations. In addition to its EEO policies, the Commission has established four separate programs— two are still in effect today— to further its goal of enhancing viewpoint diversity by distributing licenses to those believed to hold unique editorial perspectives. These programs are lottery preferences,78 comparative hearing preferences,79 distress sales,80 and tax certificates.81 The Federal Communications Act gives the Commission the power to grant broadcast licenses through a lottery, with additional chances given to minority groups.82 The relevant provision of the Communications Act defines minorities for this purpose as “ Blacks, 73. See infra notes 435-63 and accompanying text. 74. See Lutheran Church-Missouri Synod v. FCC, 141 F.3d 344, 354-56 (D.C. Cir. 1998); Review of the Commission’s Broadcast and Cable Equal Employment Opportunity Rule and Policies and Termination of the EEO Streamlining Proceeding, 15 F.C.C.R. at 2332, 2336-37, 2345, 2349-58 (paras. 4, 21, 41, 48-62). 75. See Review of the Commission’s Broadcast and Cable Equal Employment Opportunity Rule and Policies and Termination of the EEO Streamlining Proceeding, 15 F.C.C.R. at 2349-58 (paras. 48-62). 76. See infra notes 125-26 and accompanying text. 77. See Lutheran Church-Missouri Synod, 141 F.3d at 354-56. 78. See infra notes 82-84 and accompanying text. 79. See infra notes 85-95 and accompanying text. 80. See infra notes 96-101 and accompanying text. 81. See infra notes 102-07 and accompanying text. 82. See 47 U.S.C. § 309(i) (1994)
118 UNIVERSITY OF ILLINOIS LAW REVIEW [Vo Hispanics, American Indians, Alaska Natives, Asians and Pacific Islanders. "83 The purpose of the tional chances is [t]o further diversify the owner- ship" of stations. B Until very recently, the Commission also utilized comparative hearings to award radio and television li enses 5 Under this scheme, "[w]hen several appli cants ask the [Commission] for the same license, the Commission] compares several relevant characteristics of the applicants, combines the comparisons to form an overall evaluation of which broadcaster would best serve the 'public interest and then awards the li cense to the best applicant. Ordinarily, the rele vant comparative criteria" would include diversi fication of ownership of mass media, integration of ownership with management, and technical virtuos ity. "87 Under certain circumstances, however, the Com mission would assign an enhancement" or "merit point to a minority applicant. For [t]he Fcc awards a merit under the diversification-of ownership criterion to an applicant if a substantial percentage of the applicant is owned by one or more minorities.〃B Interestingly, in Tv 9, Inc. v. Federal Communica tions Commission, the Commission argued that be- cause the Federal Communications Act was ' color- blind,' it would take an applicant's race into account 83.Ia.§309(1)(3)(c)(ii 84. Id. s 309(1)(3)(A): see Implementation of section of the Implementation of Section 309(3) of the Communicati 13 F.C.c 5,920, 15, 921(para. 1)(1998)(first report and order 85. The Communications Act of 1996 generally requires the Commission to uction unissued licenses for television and radio stations to the highest bidder. See 47 U.s.C. 55 309(3)(Supp. III 1997).Consistent with this ma date, the Commission is planning on using auctions to distribute all open es for commercial television and radio stations. See Bill Mcconnell, FCC Sets Broadcast Auction, BROADCASTING CABLE, May 17, 1999, at 19, 19-20 6. Matthew L. Spitzer, Justifying Minority Preferences in Broadcastin 64s.cAL.L.REV.293,297-98(1990-91);seea1so47U.S.C.ss301,307,30 Spitzer, supra note 86, at 298; see also Policy Statement on Compara- Broadcast Hearings, 1 F.C. C 2d 393, 394-95(1965) 86,at29 a⊥ so West Mich 735F.2d601(D.C.cir.1984),cert. denied,470U.S.1027 tral Fla. Enter. v. FCC, 598 F 2d 37, 49-51 (D.C. Cir 1978) mIssed,441U.s.957(1979) 89. Spitzer, supra note 90.495F.2d929,936(D.C.Cir.1973),cert, denied,419U
KROTO.DOC 12/07/00 9:35 AM 118 UNIVERSITY OF ILLINOIS LAW REVIEW [Vol. 2000 Hispanics, American Indians, Alaska Natives, Asians, and Pacific Islanders.” 83 The purpose of the additional chances is “ [t]o further diversify the ownership” of stations.84 Until very recently, the Commission also utilized comparative hearings to award radio and television licenses.85 Under this scheme, “ [w]hen several applicants ask the [Commission] for the same license, the [Commission] compares several relevant characteristics of the applicants, combines the comparisons to form an overall evaluation of which broadcaster would best serve the ‘public interest’ and then awards the license to the best applicant.” 86 Ordinarily, the relevant “ comparative criteria” would include “ diversification of ownership of mass media, integration of ownership with management, and technical virtuosity.” 87 Under certain circumstances, however, the Commission would assign an “ enhancement” or “ merit” point to a minority applicant.88 For example, “ [t]he FCC awards a merit under the diversification-ofownership criterion to an applicant if a substantial percentage of the applicant is owned by one or more minorities.” 89 Interestingly, in TV 9, Inc. v. Federal Communications Commission,90 the Commission argued that “ because the Federal Communications Act was ‘colorblind,’ it would take an applicant’s race into account 83. Id. § 309(i)(3)(C)(ii). 84. Id. § 309(i)(3)(A); see Implementation of Section 309(j) of the Communications Act, 14 F.C.C.R. 12,541 (1999) (memorandum opinion and order); Implementation of Section 309(j) of the Communications Act, 13 F.C.C.R. 15,920, 15,921 (para. 1) (1998) (first report and order). 85. The Communications Act of 1996 generally requires the Commission to auction unissued licenses for television and radio stations to the highest bidder. See 47 U.S.C. §§ 309(j) (Supp. III 1997). Consistent with this mandate, the Commission is planning on using auctions to distribute all open licenses for commercial television and radio stations. See Bill McConnell, FCC Sets Broadcast Auction, BROADCASTING & CABLE, May 17, 1999, at 19, 19-20. 86. Matthew L. Spitzer, Justifying Minority Preferences in Broadcasting, 64 S. CAL. L. REV. 293, 297-98 (1990-91); see also 47 U.S.C. §§ 301, 307, 309 (1994). 87. Spitzer, supra note 86, at 298; see also Policy Statement on Comparative Broadcast Hearings, 1 F.C.C.2d 393, 394-95 (1965). 88. Spitzer, supra note 86, at 298; see also West Mich. Broad. Co. v. FCC, 735 F.2d 601 (D.C. Cir. 1984), cert. denied, 470 U.S. 1027 (1985); Central Fla. Enter. v. FCC, 598 F.2d 37, 49-51 (D.C. Cir 1978), cert. dismissed, 441 U.S. 957 (1979). 89. Spitzer, supra note 86, at 298. 90. 495 F.2d 929, 936 (D.C. Cir. 1973), cert. denied, 419 U.S. 986 (1974)
No.3] ENHANCING THE SPECTRUM 119 only to the extent that the applicant could show that its owner's race would likely lead to better, more di verse programming in the particular case. "9 The U.s Court of Appeals for the District of Columbia circuit rejected the Commission's position. Instead, the court essentially requir [ed] the Fcc to award a merit to all minority applicants without any demonstration that the award would improve programming service. Ac cordingly, in the comparative hearing context, minor- ity status by itself would potentially result in preferential treatment. The Commission did not require any proof of a meaningful connection between minority station ownership and viewpoint diversity before granting a preference. Although the Commission at- tempted to extend its comparative hearing preference to female applicants, the D. C. Circuit twice rejected the Commission's effort to expand the program in this way. g The distress sale program likewise grants minori. ties a benefit based solely on their minority status and on the assumption that a reasonably direct link exists between minority ownership and a station's pro gramming policies. When the Commission has good cause to question whether a particular broadcast licensee remains qua alified to hold a license, the Commission issues an order to show cause and schedules a hearing tzer, supra note 86, at 29 Id. at 99 (citing Tv 9, Inc. v. FCC, 495 F 2d 929, 938 (D.c.Cir 1973)) anded this ru the Commission gra omen a preference "of lesser significance. " See Ap- plication of Mid-Florida Television Corp, 69 F.C. C 2d 607, 652(para. 95) 1978) 4. See Spitzer, supra note 86, at 299 95. See Lamprecht v. FCC, 958 F 2d 382, 383-86(D.C. Cir. 1992): Steele v.ECC,770F.2d1192,1193-94,1196-99(D.C.Ccir.1985) 6. See Metro broad. In 497U (sustaining the distress sale policy on diversity grounds and accepting the Commission's argument that race serves as an effectit point): Statement of Policy on Minority Ownership of Broadcasting Facili- ies, 68 F.C.C. 2d 979, 980-81(1978)(defending the need for distress ales because representation of minority viewpoints in programming erves not only the needs and interests of the minority community t enhances the diversified programming which is a key objecti the Communications Act of 1934. ") David P. Stoelting, Case Note, Minor ity Business Set-Asides Must Be Supported by Specific Evidence of Prior distress sale policy was to encourage a diversity of viewpoints in the irwaves by diversifying ownership and to remedy the effects of past di crimination in the broadcast industry.
KROTO.DOC 12/07/00 9:35 AM No. 3] ENHANCING THE SPECTRUM 119 only to the extent that the applicant could show that its owner’s race would likely lead to better, more diverse programming in the particular case.” 91 The U.S. Court of Appeals for the District of Columbia Circuit rejected the Commission’s position. Instead, the court “ essentially requir[ed] the FCC to award a merit to all minority applicants without any demonstration that the award would improve programming service.” 92 Accordingly, in the comparative hearing context, minority status93 by itself would potentially result in preferential treatment. The Commission did not require any proof of a meaningful connection between minority station ownership and viewpoint diversity before granting a preference.94 Although the Commission attempted to extend its comparative hearing preference to female applicants, the D.C. Circuit twice rejected the Commission’s effort to expand the program in this way.95 The distress sale program likewise grants minorities a benefit based solely on their minority status and on the assumption that a reasonably direct link exists between minority ownership and a station’s programming policies.96 When the Commission has good cause to question whether a particular broadcast licensee remains qualified to hold a license, the Commission issues an order to show cause and schedules a hearing 91. Spitzer, supra note 86, at 298. 92. Id. at 298-99 (citing TV 9, Inc. v. FCC, 495 F.2d 929, 938 (D.C. Cir. 1973)). 93. The Commission later expanded this rule to include women; however, the Commission granted women a preference “ of lesser significance.” See Application of Mid-Florida Television Corp., 69 F.C.C.2d 607, 652 (para. 95) (1978). 94. See Spitzer, supra note 86, at 299. 95. See Lamprecht v. FCC, 958 F.2d 382, 383-86 (D.C. Cir. 1992); Steele v. FCC, 770 F.2d 1192, 1193-94, 1196-99 (D.C. Cir. 1985). 96. See Metro Broad., Inc. v. FCC, 497 U.S. 547, 567-72, 579-89 (1990) (sustaining the distress sale policy on diversity grounds and accepting the Commission’s argument that race serves as an effective proxy for viewpoint); Statement of Policy on Minority Ownership of Broadcasting Facilities, 68 F.C.C.2d 979, 980-81 (1978) (defending the need for distress sales because “ representation of minority viewpoints in programming serves not only the needs and interests of the minority community . . . . It enhances the diversified programming which is a key objective . . . of the Communications Act of 1934.” ); David P. Stoelting, Case Note, Minority Business Set-Asides Must Be Supported by Specific Evidence of Prior Discrimination, 58 U. CIN. L. REV. 1097, 1133 (1990) (“ The purpose of the distress sale policy was to encourage a diversity of viewpoints in the airwaves by diversifying ownership and to remedy the effects of past discrimination in the broadcast industry.” )