Court Rejects FCC Hiring Rules
By Ted Hearn -- Multichannel News, 1/16/2001 1:01:00 PM
Washington -- A federal court here Tuesday declared unconstitutional federal rules designed to promote the recruitment of minorities and women in the broadcast industry, dealing a setback to Federal Communications Commission chairman William Kennard four days before he leaves office.
A panel of the U.S. Court of Appeals for the District of Columbia Circuit said the FCC's program established a race-based classification for the recruitment of minorities in the broadcast industry that failed to pass constitutional muster under the due-process clause of the Fifth Amendment.
The court said that because the FCC coupled the recruitment of minorities with the recruitment of women in the same program, the agency's rule regarding women had to be rejected, as well, even though government policies designed to abet the job recruitment of women are subject to a less exacting standard of review.
The court said the FCC's program -- which in part required radio and TV stations to report the race and sex of job applicants -- 'places pressure' on broadcasters to recruit minorities because the agency promised to investigate licensees that reported 'few or no' applications from women and minorities.
'Investigation by the licensing authority is a powerful threat, almost guaranteed to induce the desired conduct,' the three-judge panel said in an opinion written by Judge Douglas H. Ginsburg.
Although the court voided the recruitment rules, it declined to rule on whether the rules exerted pressure on broadcasters to actually hire women and minorities, perhaps at the expense of other candidates who were unaware of job openings.
Kennard, the first African-American chairman in the FCC's 67-year history, was a strong defender of the agency's equal-employment-opportunity rules. The rules struck down Tuesday were Kennard's revision of early rules that were also deemed unconstitutional.
'Today's decision is a defeat for diversity. At a time when many Americans are outraged at the lack of minorities in primetime and in the boardrooms of America, the broadcasters have once again used the courts to strike down even a modest outreach effort,' Kennard said in a prepared statement.
Without addressing the court ruling, National Association of Broadcasters president Edward Fritts said the industry still had to make progress on minority employment and endorsed passage of a law that 'would reinstate the minority tax-certificate program, which proved extremely effective in attracting more minorities into the ownership ranks of broadcasting.'
In the case, the National Cable Television Association supported the FCC's minority-recruitment program.
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