Strike two for FCC EEO

Court rejects recruitment rules for second time; commission weighs appeal

For the second time in little more than two years, federal judges last week struck down the FCC's minority recruiting rules for radio and TV operators.

The decision was yet one more blow to what the Clinton administration saw as efforts to open traditional media to a greater diversity of voices but the court saw as unconstitutional "pressure" on stations. The rules were themselves a response to a previous defeat; the same court struck down long-standing recruiting requirements in 1998.

The latest decision also comes on the heels of a congressional vote in December that greatly scaled back another FCC effort to diversify the airwaves: low-power radio stations.

Ironically, the court announced its decision the same day the Clinton administration released a study detailing the paucity of minority ownership of TV and radio stations (see story at right).

The ruling added a sour note to the end of William Kennard's three-year tenure as FCC chairman, which ended last Friday. Kennard called the decision "a defeat for diversity."

"At a time when many Americans are outraged at the lack of minorities in prime time and in the boardrooms of America, broadcasters have once again used the courts to strike down even a modest outreach effort," said Kennard, the first African-American chairman of the FCC.

Worse yet for civil-rights groups, any government initiative to promote media diversity, such as industry ownership limits, may be very difficult to preserve if the court's decision stands. Consequently, the FCC is mulling whether to ask for a rehearing before the appeals court's entire 11-judge lineup or to try to take the case to the Supreme Court.

The judges struck down the new Equal Employment Opportunity rules because a portion violated broadcasters' constitutional rights. "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 government interest and is therefore unconstitutional," the court said. It went on to suggest that perhaps no recruiting rules could survive court scrutiny. That's because it's unclear whether ensuring media diversity is the government's business at all, the judges said.

"It just floored me," said civil-rights attorney David Honig. "They are so outside the mainstream it's hard to find diplomatic words to describe their opinion."

The new rules, issued last January, were opposed by the 50 state broadcast associations. Richard Zaragoza, attorney for the state broadcasters, said he was "gratified" by the decision. The FCC's previous recruiting rules were struck down because they were found to be de facto quotas.

The new rules required stations to pick one of two recruiting options, but the broadcasters complained they were saddled with unfair paperwork burdens and were being coerced into hiring minorities.

Under the first option, stations were required to provide job notices to any organization that requested them. In addition, most stations would have been required to choose four of 13 recruitment initiatives, such as job fairs, scholarships and training programs.

Under the second option, stations could have designed their own recruitment programs but, to ensure that their efforts were demographically broad, would have had to collect data on applicants' race and gender. And were the FCC to have been unhappy with the number of minority and women applicants generated by a station's outreach, the agency reserved the right to review and order changes to its employment recruiting program.

Although the FCC did not set any quota for minority or female applicants, the court found that the second option placed unconstitutional "pressure" on stations to make race and gender a focus of their hiring. "Investigation by the licensing authority is a powerful threat, almost guaranteed to induce the desired conduct," which was to get more minorities and women into the media work force, wrote Judge Douglas Ginsburg.

The judges also rejected an FCC request that the court strike only the unconstitutional portions of the rule. But the court found that leaving only the first option would rob broadcasters of flexibility in designing outreach programs, a key aim of the new FCC rules.

"I am deeply saddened that the court rejected the rules in their entirety," said FCC Commissioner Gloria Tristani. "The court's interpretation of these rules perpetuates a disheartening reality that the federal government will not ensure fair recruitment policies in the broadcast industry."