The FCC apparently hopes the third time is the charm for media recruiting rules. Burned twice by judges who struck down equal-employment-recruiting requirements, the FCC will start virtually from scratch.
At the commission's Dec. 12 meeting, FCC Chairman Michael Powell aims to propose creating new EEO rules covering both broadcasters and cable systems. The latest proposal will attempt to address judges' complaints that the FCC repeatedly went too far with previous rules by establishing de facto and illegal hiring quotas.
Instead of backing a specific rule, the plan is to ask for a new round of public comment on the gamut of EEO models generated in recent years by industry trade organizations and civil rights groups and from within the commission itself.
Civil rights attorney David Honig said he is encouraged the FCC keeps attempting to write rules that will stick but charges that the agency has been tepid in defending earlier rules in court.
One idea to be floated would allow stations and cable systems to provide job notices to any organization that requests notices, but would require stations and systems to utilize other recruitment initiatives, such as job fairs, scholarships and training programs, as well.
This approach was one of two options permitted under revised rules issued in 2000. Those rules were thrown out last January by federal appeals judges who took issue with the second option, which allowed companies to design their own recruiting program if they collected data on applicants' race and gender. The judges struck down that option, and the rules with it, because it permitted the FCC to change a recruiting program if it didn't like the outcome.
Another idea that is under consideration is a broadcast-industry plan that would let companies utilize job fairs and other outreach events or simply list openings in an online job bank.
Civil rights groups still hope companies will be forced to record applicant demographics. The FCC is expected to vet whether there's a way to require companies to do that without drawing judges' ire.
Also, Honig's Minority Media Telecommunications Council and other advocacy groups have asked the Supreme Court to uphold the last incarnation of the recruiting rules. Broadcaster briefs in the Supreme Court appeal are due Dec. 26, and the industry is "determined to oppose" a high-court hearing, said attorney Richard Zaragoza, who is representing trade groups for the state trade associations. The cable industry supported the FCC's previous EEO attempt and is sitting out the court fight.
It's hard to predict whether the justices will take the case, given that they threw out a separate affirmative-action case last week on procedural grounds. That case, involving minority contracting rules for government agencies, was expected to cast light on the court's leanings toward affirmative-action rules in general.
"This makes the legal pond even murkier," said Andrew Schwartzman, president of Media Access Project.