Court Rejects FCC Recruitment Rules
By TED HEARN -- Multichannel News, 1/22/2001
WASHINGTON-A U.S. court here last week declared unconstitutional federal rules designed to promote the recruitment of minorities and women in the broadcast industry, a setback to outgoing Federal Communications Commission chairman William Kennard.
In a win for broadcasters, a panel of the U.S. Court of Appeals for the District of Columbia Circuit said the agency's program established a race-based classification for the recruitment of minorities that failed to pass constitutional muster under the due-process clause of the Fifth Amendment.
The FCC's rules also applied to cable operators, but the cable industry supported the agency's effort and didn't join broadcasters in the court fight. Cable-industry lawyers last week were reviewing the opinion to determine whether the FCC's cable equal employment opportunity (EEO) rules remained in effect.
"We are studying the effect of the impact of the court ruling as to whether this also voids EEO rules for cable, even though they were not on appeal," said Daniel Brenner, senior vice president for law and regulatory policy at the National Cable Television Association.
The court said that because the FCC coupled the recruitment of minorities and women in the same program, agency rules with respect to women also had to be rejected, even though government policies designed to aid recruitment of women were subject to a less exacting review standard.
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 those regulations put 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 EEO 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," Kennard said in a prepared statement. "At a time when many Americans are outraged at the lack of minorities in prime time and in the boardrooms of America, the broadcasters have once again used the courts to strike down even a modest outreach effort."
The chairman left office last Friday.
Without addressing the court ruling, National Association of Broadcasters president Edward Fritts said the industry still must make progress on minority employment. He 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."
