Federal appeals judges Tuesday denied the FCC's request for a new hearing on agency's minority and female recruiting rules for broadcast stations and cable systems which were struck down on a decision in January.
A strongly worded dissent by five of the panel's nine members, however, leaves open a possibility of an appeal to the U.S. Supreme Court. Of the rule's two compliance options, the FCC had asked court to preserve one that would have required stations to provide job notices to any organization that requested. Plus, most stations would have been required to choose four of 13 recruitment initiatives such as job fairs, scholarships and training programs.
The court in January said it had no problem with that option, but because a second option was struck down it tossed out the entire regimen. Under the second option, which the court found to be a defacto, unconstitutional quota, stations could have designed their own recruitment programs.
To ensure their efforts were demographically broad, though, stations would have had to collect data on applicants' race and gender. If the FCC was 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 a its employment recruiting program.
Because one of the FCC's stated goals was to offer broadcasters flexibility in meeting recruiting obligations, four of the seven members of the federal appeals court in Washington said the FCC could not preserve just the first option. "Option B played an integral role," wrote Judge Douglas Ginsburg. Three dissenting members of the panel, led by Judge David Tatel, argued that the first option alone provided sufficient flexibility to broadcasters.
They also questioned whether the second option's record keeping requirement was truly unconstitutional. By ruling that tallies of applicants' race and gender would hurt while males' hiring chances, Tatel said the majority based its decision on "broadcaster paranoia" rather than the facts of the case. - Bill McConnell