NAACP Legal Defense Fund Charges Louisiana, Mississippi School Boards Delay Supreme Court Ruling
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August 6, 1968
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Brief Collection, LDF Court Filings. Lutheran Church-Missouri Synod v. FCC and the Missouri State Conference of the NAACP Brief for Federal Communications Commission, 1998. dbbff81c-bc9a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/66dda138-6856-42cc-abec-e5821513141e/lutheran-church-missouri-synod-v-fcc-and-the-missouri-state-conference-of-the-naacp-brief-for-federal-communications-commission. Accessed August 19, 2025.
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In The
United States Court Of Appeals
For The D istrict Of Columbia Circuit
NO. 97-1116
The Lutheran Church - Missouri Synod,
Appellant
v.
Federal Communications Commission,
Appellee
Missouri State Conference of
Branches of the NAACP, e t a l .,
Intervenors
On Appeal From An Order Of The
Federal Communications Commission
William E. Kennard
General Counsel
Daniel M. Armstrong
Associate General Counsel
C. Grey Pash, Jr .
David Silberman
Allan Sacks
Counsel
Federal Communications Commission
Washington, D. C. 20554
(202) 418-1740
CERTIFICATE AS TO PARTIES. RULINGS AND RELATED CASES
(A) Parties and Amici:
All parties, intervenors and amici appearing below and in this Court are listed in the
appellant’s brief.
(B) Rulings Under Review:
The orders on appeal in this case are The Lutheran Church - Missouri Svnod. 10 FCC
Red 9880 (AU 1995), a ffd . 11 FCC Red 5275 (Rev. Bd. 1996), review granted in part. 12
FCC Red 2152 (1997) (J .A .___, ___ , ___).
(C) Related Cases:
A related case, Missouri State Conference of Branches of the NAACP, et al. v. FCC,
was before the Court in No. 97-1115. That case was dismissed with prejudice at the appellant’s
request on September 30, 1997. Counsel are not aware of any other related cases pending
before this or any other court.
TABLE OF CONTENTS
Page
STATEMENT OF ISSUES PRESENTED ........................................................................... 1
STATUTES AND REGULATIONS...................................................................................... 2
JURISDICTION....................................................................................................................... 3
COUNTERSTATEMENT ....................................................................................................... 3
I. Introduction .................................................................................................................. 3
II. Regulatory Background .............................................................................................. 4
HI. Factual Background........................................................................................................ 5
SUMMARY OF ARGUM ENT.............................................................................................. 15
STANDARD OF REVIEW ................................. 16
ARGUMENT............................................................................................................................. 17
I. THE COMMISSION’S DECISION TO IMPOSE A $25,000 FORFEITURE
AGAINST THE CHURCH FOR LACK OF CANDOR IS SUPPORTED BY
SUBSTANTIAL EVIDENCE IN THE RECORD...................................................... 17
II. THE FCC’S EEO RULE, AND THE AGENCY’S ACTION IN THIS CASE,
ARE LAWFUL AND REASONABLE EXERCISES OF ITS AUTHORITY
UNDER THE COMMUNICATIONS ACT TO ENSURE THAT
BROADCAST LICENSEES OPERATE IN THE PUBLIC INTEREST..................... 23
A. The Church’s First Amendment Free Exercise And
Establishment Challenges To The EEO Rule And To Its
Application In This Case Conflict With King’s Garden. Which
Is Controlling.................................................................................................... 24
B. The Church’s First Amendment Speech Arguments Are Not
Properly Before The Court And, In Any Event, Are Invalid........................ 30
C. The Adarand Decision Does Not Affect The Validity Of The
FCC’s EEO Rule Under The Fifth Amendment Or Its
Application Of The Rule In This Case............................................................. 31
- i -
1. The Church Lacks Standing To Raise An Equal
Protection Challenge To The Commission’s EEO
Rule......................................................................................................... 31
2. The EEO Rule Is Not Subject to Strict Scrutiny
Under Adarand ................................................................................... 32
D. The Religious Freedom Restoration Act Does Not Prohibit The
FCC’s Application Of Its EEO Rule To The Church In Its Role
As A Licensee Of Broadcast Stations............................................................... 38
E. The Church’s Argument That It Was Arbitrary And Capricious
For The Commission To Continue To Apply The EEO Rule
Without Re-examining The Rule’s "Underlying Premises" Is Not
Properly Before The Court................................................................................ 39
CONCLUSION ....................................................................................................................... 42
- ii -
TABLE OF AUTHORITIES
Cases:
Adarand Constructors. Inc, v. Pena.
115 S. Ct. 2097 (1 9 9 5 ).......................................................... 11, 15, 31-34, 36
Adelphia Communications Corp. v. FCC.
88 F.3d 1250 (D.C.Cir. 1996) ..................................................................... 30
American Fed, of Gov’t Employees v.
FLRA. 777 F.2d 751 (D.C.Cir. 1985)....................................................... .. 39
American Message Centers v. FCC.
50 F.3d 35 (D.C. Cir. 1995) ........................................................................ 17
American Scholastic TV Programming
Foundation v. FCC. 46 F.3d 1173
(D.C.Cir. 1995) .............................................................................................. 30
American Tel. & Tel. Co. v. FCC. 974
F.2d 1351 (D.C.Cir. 1992) ..................................................................... 21, 30
Bechtel v. FCC. 10 F.3d 875
(D.C.Cir. 1993) .............................................................................................. 40
Bilingual Bicultural Coalition on
Mass Media. Inc, v. FCC. 595
F.2d 621 (D.C. Cir. 1978)............................................................................ 10
Bowman Transportation v. Arkansas-Best
Freight System. 419 U.S. 281 (1974) .......................................................... 16
Brandvwine-Main Line Radio. Inc, v. FCC.
473 F.2d 16 (D.C. Cir. 1972),
cen. denied. 412 U.S. 922 (1973) ................................................................ 25
Butz v. Glover Livestock Commission
Co.. Inc.. 411 U.S. 182 (1 973 )..................................................................... 22
Chritton v. NTSB- 888 F.2d 854
(D.C. Cir. 1989).............................................................................................. 18
Citizens to Preserve Overton Park
v. Volpe. 401 U.S. 402 (1971) ..................................................................... 16
- m -
City of Boeme v. Flores.
117 S.Ct. 2157 (1997) .............................................................................. 28 ,38
City of Brookings Mun. Tel. Co. v. FCC.
822 F.2d 1153 (D.C.Cir. 1987)..................................................................... 30
Columbia Broadcasting System. Inc, v.
Democratic National Comm..
412 U.S. 94 (1973) ......................................................................................... 26
Columbia Gas Transmission Co. v.
FERC. 750 F.2d 105 (1984)........................................................................... 22
Complaint bv Anderson. 34 FCC 2d 937
(1972), afTd sub nom. King’s Garden.
Inc.. 38 FCC 2d 339 (1972), a ffd .
King’s Garden. Inc, v. FCC. 498 F.2d
51 (D.C. Cir.). cert, denied. 419 U.S.
996 (1974)............................................... 4, 6, 8-12, 14, 15, 24, 26-29, 38, 39
Consolidated Edison Co. v. NLRB.
305 U.S. 197 (1938) ................... . . . ....................................................... 18
Consolo v. FMC.
383 U.S. 607 (1966) ............................ ....................................................... 18
Continental Broadcasting. Inc. v. FCC.
439 F.2d 580 (D.C. Cir.) ................... ....................................................... 22
* Corporation of the Presiding Bishop
v. Amos. 483 U.S. 327 (1987) ........... ................................. 9-11, 15, 27, 28
Edison Elec. Institute v. ICC.
469 F.2d 1221 (D.C. Cir. 1992) . . . . ....................................................... 40
* Employment Div. v. Smith.
494 U.S. 872 (1990) ............................ ..................................................29, 37
* FCC v. WOKO. Inc..
329 U.S. 223 (1946) ............................ ..................................................22, 23
* Florida State Conference of NAACP v.
FCC. 24 F.3d 271 (D.C Cir 1994) ......................................... 10, 34, 35
Freeman Engineering Associates, Inc. v.
FCC. 103 F.3d 169 (D.C. Cir. 1997) ....................................................... 16
- iv -
Garden State Broadcasting Ltd.
Partnership v. FCC. 996 F.2d
386 (D.C. Cir. 1 9 9 3 ) ......................................................................................... 5
Gillette v. United States.
401 U.S. 437 (1971) ...................................................................................... 26
Greater Boston Television Corp. v. FCC.
444 F.2d 841 (D.C. Cir. 1970),
cert, denied. 403 U.S. 923 (1971) ................................................................ 22
Haitian Refugee Center v. Gracev.
809 F.2d 794 (D.C. Cir. 1 9 8 7 )..................................................................... 32
Jacobs v. Barr. 959 F.2d 313
(D.C. Cir. 1992 ).............................................................................................. 31
Kisser v. Cisneros. 14 F.3d 615
(D.C. Cir. 1994).............................................................................................. 16
Leflore Broadcasting Co.. Inc, v. FCC.
636 F.2d 454 (D.C. Cir. 1980) ................................................................ 21-23
Lorain Journal Co. v. FCC. 351 F.2d
824 (D.C. Cir. 1965), cert, denied.
383 U.S. 967 (1966) 18
Lujan v. Defenders of Wildlife.
504 U.S. 555 (1992) 31
Melody Music. Inc, v. FCC.
345 F.2d 730 (D.C. Cir. 1 9 6 5 )..................................................................... 21
Millar v. FCC. 707 F.2d 1530
(D.C. Cir. 1983).............................................................................................. 18
Monterey Mechanical Co. v. Wilson.
___F .3 d___ , 1997 WL 538757
(9th Cir., Sept. 3, 1997) ................................................................................ 36
NAACP v. FPC.
425 U.S. 662 (1976) ................................................................................ 28, 34
Niagara Mohawk Power Corp. v. FPC.
379 F.2d 153 (D.C. Cir. 1 9 6 7 )..................................................................... 22
- v -
Noe v. FCC. 260 F.2d 739 (1958),
cert, denied. 359 U.S. 924 (1959) 25
Northwestern Indiana Tel. Co. v. FCC.
872 F.2d 465 (D.C. Cir. 1989),
cert, denied. 493 U.S. 1035 (1990)................................................................ 30
Office of Communication of the United
Church of Christ v. FCC. 359 F.2d
994 (D.C. Cir. 1 9 6 6 ) ...................................................................................... 25
Press Broadcasting Co.. Inc, v. FCC.
59 F.3d 1365 (D.C. Cir. 1995) ...................................................................... 17
Red Lion Broadcasting Co. v. FCC.
395 U.S. 367 (1969) ................................................................................ 25, 26
RKO General. Inc, v. FCC. 670
F.2d 215 (D.C. Cir. 1981),
cert, denied. 456 U.S.
927 (1982).............................................................................................. 5 ,2 1 ,2 2
Scott v. Rosenberg. 702 F.2d 1263
(9th Cir. 1983), cert, denied.
465 U.S. 1078 (1984)...................................................................................... 25
Suncom Mobile & Data. Inc, v. FCC.
87 F.3d 1386 (D.C. Cir. 1 9 9 6 )..................................................................... 31
Syracuse Peace Council v. FCC.
867 F.2d 654 (D.C. Cir. 1989),
cert, denied. 493 U.S. 1019 (1990)................................................................ 17
Valley Forge Christian College v. Americans
United. 454 U.S. 464 (1982) ........................................................................ 32
WADECO. Inc, v. FCC.
628 F.2d 122 (D.C. Cir. 1 9 8 0 )..................................................................... 21
Warth v. Seldin.
422 U.S. 490 (1974) 32
WEBR. Inc, v. FCC. 420 F.2d 158
(D.C. Cir. 1969).............................................................................................. 17
- vi -
West Coast Media. Inc, v. FCC.
695 F.2d 617 (D.C. Cir. 1982),
cert, denied. 464 U.S. 816 (1983) ................................................................ 22
Western Airlines. Inc, v. CAB.
495 F.2d 145 (D.C. Cir. 1 9 7 4 )..................................................................... 18
White Mountain Broadcasting Co. v.
FCC. 598 F.2d 274 (D.C. Cir.),
cert, denied. 444 U.S. 963 (1979) ................................................................ 22
WHW Enterprises. Inc, v. FCC.
753 F.2d 1132 (D.C. Cir. 1985) .................................................................. 17
Woodfork v. FCC. 70 F.3d 639
(D.C. Cir. 1995).............................................................................................. 21
Agency Rulings: Page
Arkansas Educ. Tel. Comm’n.
3 FCC Red 1923 (1988) ........... ' ................................................................... 34
Asheboro Broadcasting Co..
20 FCC 2d 1 (1969)........................................................................................ 21
Benchmark Radio.
11 FCC Red 8547 (1996)........................................................................... 33, 34
Black Television Workshop. 8 FCC
Red 4192 (1993), recon, denied.
8 FCC Red 8719 (1993), rev, denied.
9 FCC Red 4477 (1994) ........... ........................ ............................................ 21
Broadcast EEO Report and Order.
2 FCC Red 3967 (1987) ........................................................................... 34, 35
California Broadcasting Corp..
2 FCC Red 4175 (Rev. Bd.
1987)................................................................................ .. ................................. 5
Complaint by Anderson.
34 F.C.C.2d 937 (1972) ................................................................................ 25
Davidson Countv Broadcasting Co..
• 12 FCC Red 3375 (1997)................................................................................ 33
- vii -
Fox River Broadcasting. Inc..
93 FCC 2d 127 (1983) ...................................................................................... 5
Fox Television Stations. Inc.. 10 FCC
Red 8452 (1995), recon, denied.
11 FCC Red 7773 (1996)........................................................................... 19, 20
Implementation of Commission’s EEO
Rules. Report to Congress.
9 FCC Red 6276 (1994) ................................................................................ 34
Implementation of Commission’s Equal
Employment Opportunity Rules.
9 FCC Red 2047 (1994) .............................................................................. 4, 35
Louisiana Broadcast Stations.
7 FCC Red 1503 (1992) ................................................................................ 35
Miami Broadcast Stations.
5 FCC Red 4893 (1990) ................................................................................ 35
Navarro Broadcasting Ass’n. 8
FCC 198 (1940) ................................................................................................. 5
Nondiscrimination in Employment
Practices. 13 F.C.C.2d 766 (1968)................................................................ 34
Nondiscrimination in Employment
Practices. 18 F.C.C.2d 240 (1969) ................................................................ 34
Nondiscrimination in Employment
Practices. 23 F.C.C.2d 430 (1 970 ).................................................................. 34
Policy Regarding Character Qualifications
in Broadcast Licensing. 102 FCC 2d
1179 (1986)......................................................................................................... 14
Radio Seaway, Inc..
7 FCC Red 5965 (1992) ................................................................................ 35
Request of National Religious Broadcasters.
•Inc.. 43 FCC 2d 451 (1 9 7 3 )........................................................................ 4, 25
Rov M. Speer.
11 FCC Red 18393 (1 9 9 6 )............................................................................... 21
- viii -
Streamlining Broadcast EEO Rule and
Policies. 11 FCC Red 5154 (1 9 9 6 )................................................................... 4
* Tidewater Radio. 11 FCC Red 7814
(1996), reconsid. denied.
FCC 97-121 (Aug. 5, 1 9 9 7 ) ........................................................................... 34
WCMS Radio Norfolk.
11 FCC Red 11081 (1 9 9 6 )............................................................................. 33
WDOD of Chattanooga.
12 FCC Red 6399 (1997)................................................................................ 33
Statutes and Regulations:
47 C.F.R. 73.1015 . . .
* 47 C.F.R. 73.2080 . . .
47 C.F.R. 73.2080(a)(3)
5 U.S.C. 706(2)(A) . .
42 U.S.C. 2000bb-l . .
42 U.S.C. 2000bb-2(l)
42 U.S.C. 2000e-l . . .
42 U.S.C. 2000e-l(a) .
* 47 U.S.C. 307(a) . . . .
* 47 U.S.C. 307(d) . . . .
* 47 U.S.C. 309(a) . . . .
47 U.S.C. 334 ..............
47 U.S.C. 402(a) . . . .
47 U.S.C. 402(b) . . . .
* 47 U.S.C. 405 ..............
2, 5, 7, 21
. . . . passim
.............. 37
.............. 16
. . . . 11, 38
.............. 38
.............. 27
9, 10, 27, 28
.............. 34
.............. 34
.............. 34
.............. 35
....................3
....................3
2, 14, 21, 30, 39
- IX -
47 U.S.C. 503(b ).......................................................................................................... 14
47 U.S.C. 503(b)(2)(D).........................................................................................14, 23
47 U.S.C. 503(b)(3)(A)................................................................................................. 3
Cases and other authorities principally relied upon are marked with an asterisk.
- x -
IN THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
No. 97-1116
THE LUTHERAN CHURCH - MISSOURI SYNOD,
Appellant,
v.
FEDERAL COMMUNICATIONS COMMISSION,
Appellee,
THE MISSOURI STATE CONFERENCE OF
BRANCHES OF THE NAACP, et al.,
Intervenors.
ON APPEAL FROM AN ORDER OF THE
FEDERAL COMMUNICATIONS COMMISSION
BRIEF FOR FEDERAL COMMUNICATIONS COMMISSION
STATEMENT OF ISSUES PRESENTED
Following an evidentiary hearing before an Administrative Law Judge, the Federal
Communications Commission renewed the licenses of appellant, the Lutheran Church -Missouri
Synod ("the Church"), for its AM and FM radio stations in Clayton, Missouri. The Commission
affirmed with modifications the decision of the Review Board to renew the Church’s broadcast
licenses. The Board had imposed reporting conditions on the renewals as a result of the
Church’s violation of provisions of the Commission’s Equal Employment Opportunity ("EEO”)
2
rule, 47 C.F.R. 73.2080, and a $50,000 forfeiture for misleading statements made in violation
of a Commission rule requiring applicants and licensees to be truthful in their written statements
to the Commission, 47 C.F.R. 73.1015. The Board granted the renewals for a short term
ending January 1, 1997, one month earlier than the expiration of the current license term. The
Commission reduced the forfeiture for violating the "truthful statements" rule to $25,000 and
renewed the licenses for a full term with reporting conditions as a remedy for the EEO
violations. The issues presented are:
1. Whether the Commission reasonably concluded, on the basis of substantial evidence
in the record, that a $25,000 monetary forfeiture should be imposed on the Church for lack of
candor in representations that it made to the Commission.
2. Whether the Commission’s application of its EEO rule to the Church, was a rea
sonable exercise of the Commission’s public interest mandate under the Communications Act,
and whether the order infringed on the Church’s First Amendment speech and religion rights.
3. Whether the Commission’s EEO rule is prohibited by the Religious Freedom
Restoration Act.
4. Whether the Church has standing to contend that the EEO rule violates the equal pro
tection component of the Fifth Amendment.
5. Whether the Church is barred by 47 U.S.C. 405 from arguing that (1) the Commis
sion’s action violates its free speech rights and (2) the Commission was required to re-examine
the "underlying premises of” its EEO rule before applying it to the Church.
STATUTES AND REGULATIONS
Pertinent statutes and regulations are set forth in the statutory addendum to this brief.
3
JURISDICTION
This Court has jurisdiction pursuant to 47 U.S.C. 402(b) insofar as this case involves a
challenge to the imposition of EEO reporting requirements based on the FCC’s conclusion that
the Church had violated the Commission’s EEO rule. Insofar as the Church is challenging the
$25,000 forfeiture based on the Commission’s conclusion that the Church lacked candor in a
representation it made to the Commission, jurisdiction exists pursuant to 47 U.S.C. 402(a). See
47 U.S.C. 503(b)(3)(A). The only practical consequence here of the Church’s failure properly
to invoke Section 402(a) appears to be that the United States should have been, but was not,
made a respondent on the forfeiture part of this litigation. We and the United States believe that
the Court can simply rectify this matter by ordering nunc pro tunc that the Church’s notice of
appeal also be treated as a petition for review under 47 U.S.C. 402(a) and that the briefing
already done on that issue be treated as briefing of the petition for review.
COUNTERSTATEMENT
I. Introduction
This case involves an appeal from FCC orders in which the Commission renewed the
broadcast licenses of the Church for its two radio stations in Clayton, Missouri — i.e ..
KFUO(AM), a daytime-only station operating non-commercially with a religious programming
format, and KFUO-FM, a full-time commercial station broadcasting classical music and some
religious programming. The Lutheran Church - Missouri Svnod. 10 FCC Red 9880 (ALJ 1995)
("Initial Decision" affd, 11 FCC Red 5275 (Rev. Bd. 1996) ("Board Decision"!, review granted
in part, 12 FCC Red 2152 (1997) ( Commission Order") (JA___, ___, ). The Commission
(1) imposed reporting conditions on the renewals because of the Church’s violation of the EEO
4
requirements, and (2) assessed a $25,000 forfeiture for misleading statements made to the
Commission. Commission Order (JA ___).
H. Regulatory Background
EEO Rules. Section 73.2080 of the Commission’s Rules, 47 C.F.R. 73.2080, requires
a broadcast licensee to refrain from employment discrimination, and to establish, maintain, and
carry out an EEO program reflecting positive and continuing efforts to assure equal employment
opportunity without regard to race, religion or sex in every aspect of station employment. The
EEO rule is not intended to replicate federal and state antidiscrimination laws but to promote
equal employment opportunities as a means of furthering program diversity. See Implementation
of Commission’s Equal Employment Opportunity Rules. 9 FCC Red 2047 (1994). When
evaluating EEO performance at renewal time, the FCC focuses on the licensee’s efforts to
contact sources likely to refer qualified women and minorities and the licensee’s ongoing
assessment of its EEO efforts. The objective of the Commission’s efforts-based program is to
increase the pool of eligible candidates from which the licensee can select the best qualified
applicant. See Streamlining Broadcast EEO Rule and Policies. 11 FCC Red 5154 (1996).
In order to accommodate the rights of religious broadcasters, such as the Church,
however, the Commission has exempted individuals employed to espouse the station’s religious
philosophy over the air. Complaint bv Anderson. 34 FCC 2d 937, 938 (1972), affd King’s
Garden, Inc., 38 FCC 2d 339 (1972), afTd, King’s Garden. Inc, v. FCC. 498 F.2d 51 (D.C.
Cir.), cert, denied. 419 U.S. 996 (1974) ("King’s Garden"): see also Request of National
Religious Broadcasters, Inc.. 43 FCC 2d 451 (1973) (the exemption from the Commission’s
rules proscribing religious discrimination "is limited to those who, as to content or on-the-air
presentation, are connected with the espousal of the licensee’s religious views.").
5
Misrepresentation & Lack of Candor. Section 73.1015 of the Commission’s Rules,
47 C.F.R. 73.1015, requires licensees, permittees, and applicants to make truthful written
statements to the Commission. This rule expressly prohibits the making of any
misrepresentation or willful material omission in any application, pleading, response, report, or
any other written submission to the Commission. Applicants for Commission authorizations are
thus expected to provide "’true and accurate information’" to the Commission and the
Commission can take "’disciplinary action against those who make false representations to the
Commission.’" California Broadcasting Corp.. 2 FCC Red 4175, 4177 5 6 (Rev. Bd. 1987),
quoting Navarro Broadcastine Ass’n. 8 FCC 198, 199 (1940).
In particular, an applicant’s written statements to the Commission concerning its EEO
program must be truthful and accurate, 47 C.F.R. 73.1015, and an applicant may be disqualified
for lacking candor with the Commission, see Garden State Broadcasting Ltd. Partnership v.
FCC. 996 F.2d 386, 393 (D.C. Cir. 1993); RKO General. Inc, v. FCC. 670 F.2d 215, 234
(D.C. Cir. 1981), cert, denied. 456 U.S. 927 (1982) ("RKO": Fox River Broadcasting. Inc..
93 FCC 2d 127, 130 (1983) (lack of candor involves concealment, evasion, and other failures
to be fully informative).
IH. Factual Background
Hearing Designation Order. The Commission designated the Church’s renewal
applications for hearing in 1994 and specified an issue to determine whether the licensee had
complied with the EEO requirements. This action followed the filing of a petition to deny by
intervenor Missouri State Conference of Branches of the NAACP and two local branches of the
NAACP ("NAACP"), the issuance of five letters of inquiry by the Commission, and receipt of
the licensee’s responses. The Commission specifically questioned the licensee’s recruitment
6
efforts and noted that its reasons for failing to recruit - e.g.. that it required "classical music
expertise" and "Lutheran training" — were unacceptable because they had a direct adverse impact
on the recruitment of Blacks. The bona fides of the classical music criterion were suspect, the
Commission stated, because not all persons hired for the specified positions had such expertise
and the licensee did not attempt to recruit minorities who did have this training. Hearing
Designation Order. 9 FCC Red 914, 923 (1994) ("HDO") (JA ___).
The Commission also questioned the truthfulness of the Church’s representations in its
renewal applications and in its responses to inquiries regarding the specifics of its EEO outreach
efforts and therefore designated an issue to determine whether it misrepresented or lacked candor
in providing information to the Commission concerning its recruitment and employment history
and practices. Icf at 924-25 (JA ___).
Initial Decision. The Initial Decision found that, although the Church’s stations did not
discriminate against any person on the basis of race or color, they violated the Commission’s
EEO requirements by improperly giving preferential hiring treatment to individuals with
knowledge of Lutheran doctrine and to active members of Lutheran congregations for positions
which were not reasonably connected with espousal of the Church’s religious views. These
hiring practices, the ALJ held, were contrary to King’s Garden. 498 F.2d 51, which upheld the
FCC’s exemption of only those positions substantially connected with religious programming
from the Commission’s affirmative action rule. Initial Decision. 10 FCC Red at 9907-09 (JA
___-___). The ALJ further concluded that the Church’s overall affirmative action efforts during
the last two and a half years of the license term were unsatisfactory and not in compliance with
47 C.F.R. 73.2080. The ALJ held that these deficiencies were sufficiently serious as to warrant
7
the imposition of EEO reporting conditions, but not severe enough to warrant non-renewal. 10
FCC Red at 9911-12, 9916-17 (JA - ).
The A U concluded that the Church lacked candor in its representations to the
Commission, first, in describing the stations’ minority recruitment program in its 1989 renewal
applications, and second, in informing the Commission that knowledge of classical music was
a requirement for the position of salesperson at the FM station. Accordingly, the A U imposed
a $50,000 forfeiture for the Church’s willful and repeated violation of 47 C.F.R. 73.1015. Icf
at 9913-16 (JA - ).
Review Board Decision. On appeal, the Review Board affirmed the Initial Decision,
which it described as "carefully crafted" and "fully supported by [the] record . . . and
Commission precedent." Board Decision. 11 FCC Red 5275 (JA___). The Board agreed that
the imposition of reporting conditions was the appropriate remedy for the licensee’s
noncompliance with the Commission’s EEO requirements during the latter part of the license
term, and for its preferential hiring treatment afforded Lutherans for the positions of
receptionist, secretary, engineer, and business manager, positions not reasonably connected with
the espousal of the Church’s religious views. Icf at 5280-81 (JA ___-___). Relying on the
A U ’s factual fmdings, the Board concluded that:
■ With the exception of Thomas M. Lauher, general manager of the FM station from
May 1987 to July 1989, no management employee made any attempt to implement a consistent
EEO program at the stations. Neither the Reverend Paul Devantier, the Executive Director of
the Church’s Board for Communications Services, CEO of the stations, and acting general
manager of the FM station, nor Dennis Stortz, the Operations Manager for the stations from
1978 to 1991 and acting general manager for the stations from July 1986 to May 1987, took
steps to carry out the EEO program, even though Stortz, who was in charge of day-to-day
operations, had been informed by counsel of the Commission’s EEO requirements and the need
to carefully review the stations’ EEO efforts, and had received memoranda from Lauher pointing
out the stations’ deficiencies.
8
■ Until corrected by Lauher, the employment application in use at the time gave no
notice of the stations’ EEO policies, did not state that discrimination was prohibited, and did
state that preference could be given to Lutherans.
■ The licensee’s efforts to solicit the assistance of likely sources of qualified minority
applicants were irregular and generally unsuccessful - on one occasion, in July 1989. Lauher
sent letters to university and personnel agency sources indicating a general interest in minority
referrals but the letters did not mention specific openings and these sources were not
subsequently contacted when positions were filled.
■ The stations did not evaluate their employment profile and job turnover against the
availability of minorities and females in their recruitment area.
■ Following Lauher’s departure, there was no continuing review of the stations’ job
structure or analysis of their efforts to recruit and hire minorities.
Id. at 5277 113, 5280 130 (JA ___).
Even more serious, in the Board’s view, was the licensee’s lack of candor regarding its
EEO program. Specifically, the Board agreed with the A U that a narrative statement describing
the licensee’s recruitment program in its renewal applications, which was prepared under
supervision of the stations’ operations manager, was "grossly misleading" because it conveyed
the impression that the stations had adopted a model EEO program whereas the record
established that the licensee’s program had fallen into noncompliance. The Board, however,
declined to resolve the second instance of lack of candor found by the A U involving the
licensee s response that knowledge of classical music was a requirement for sales positions at
the FM station, concluding that the lack of candor it affirmed was sufficiently serious to justify
the A U ’s imposition of a $50,000 forfeiture. Finally, because of the EEO violations, the Board
granted the renewals for a short term. Id, at 5281 (JA ___).
Commission Order. (1) EEO Issue. The Commission affirmed the decisions below
over the Church’s objection that they violated its constitutional right to religious freedom. The
Commission thus rejected the Church’s principal argument that King’s Garden is no longer good
9
law. The Commission explained that King’s Garden upheld the Commission’s policy limiting
its exemption of religious broadcasters from the EEO rules to those individuals hired to espouse
religious views on the air. The King’s Garden Court thus held that "[wjhere a job position has
no substantial connection with program content, or where the connection is with a program
having no religious dimension," enforcement of the Commission’s EEO rules does not violate
a licensee’s First Amendment right to freedom of religious expression. King’s Garden. 498 F.2d
at 61. Commission Order. 12 FCC Red at 2157 (JA ___).
The Commission noted that the Court in King’s Garden rejected the contention that the
Commission’s limited exemption for religious broadcasters is inconsistent with a 1972
amendment to Section 702 of the Civil Rights Act of 1964 , 42 U.S.C. 2000e-l(a), which
exempted all "activities" of religious organizations from the ban on religious discrimination in
employment contained in Title VII of that law. According to the Commission, the Court found
that the Commission’s EEO rules were independently promulgated under the public interest
standard of the Communications Act, and that Congress did not indicate an intent in 1972 that
the broader exemption in the Civil Rights Act should be engrafted onto the Commission’s rules.
Id. at 53-54, 57. Commission Order. 12 FCC Red at 2156-57 (JA ___-___).
The Commission expressly disagreed with the Church’s contention that, to the extent
King’s Garden contravenes its claimed right to give preference to Lutherans for all positions
under the exemption for religious institutions enacted in Section 702 of the Civil Rights Act, that
case has been effectively overturned by Corporation of the Presiding Bishop v. Amos. 483 U.S.
327 (1987) ("Amos").
Nevertheless, the Commission emphasized that King’s Garden based its conclusion
upholding the Commission’s policy on an independent ground, namely, that the broader
10
exemption of all activities of religious organizations in Section 702 was simply not relevant to
the Commission’s regulation of the EEO practices of broadcast licensees under the public interest
standard of the Communications Act. See 498 F.2d at 58. The Commission explained that:
Had Congress exempted religious organizations from the Commission’s public
interest requirements in 1972, or if the Commission independently promulgated
such an exemption, Amos indicates that such an exemption would be
constitutional. But Congress has not enacted such an exemption and the
Commission has not itself adopted such an exemption. Since the Commission’s
EEO policies are not founded on the Civil Rights Act, there is nothing in Amos
that supports a conclusion that the Commission’s lack of a comparable exemption
in its EEO rules and cases is unconstitutional.
12 FCC Red at 2157-58 (JA ___-___).
The Commission stressed that, as in King’s Garden, the courts have consistently
recognized the distinction between the Commission’s EEO requirements and Title VII of the
Civil Rights Act. See Florida State Conference of NAACP v. FCC. 24 F.3d 271, 274 n. 4
(D.C. Cir. 1994) (statistical analysis employed in Title VII cases is irrelevant in determining
compliance with EEO rule); Bilingual Bicultural Coalition on Mass Media. Inc, v. FCC. 595
F.2d 621, 628 (D.C. Cir. 1978) (”[T]he FCC is not the Equal Employment Opportunity
Commission, and a license renewal proceeding is not a Title VII suit.")
The Commission concluded that King’s Garden’s teaching remains valid and applies to
the licensee in this case:
A religious group, like any other, may buy and operate a licensed radio or
television station . . . . But, like any other group, a religious sect takes its
franchise "burdened by enforceable public obligations."
* * *
[A religious group] confronts the FCC’s rules only because the sect has sought
out the temporary privilege of holding a broadcasting license, [which is] "a
limited and valuable part of the public domain."
11
Commission Order. 12 FCC Red at 2158-59 (JA ___), quoting King’s Garden. 498 F.2d at 60
(citations omitted).
Lastly, in this regard, the Commission noted significantly that, because Amos literally
applies only to the "nonprofit activities" of religious employers, and the record here establishes
that KFUO-FM operated commercially beginning in July 1983 and for the remainder of the
license term in issue, Amos would not insulate that station’s hiring practices in any case. See
Commission Order. 12 FCC Red at 2158-59 (JA ___-___).
The Commission also rejected the Church’s argument that application of the EEO rule
violates the equal protection clause of the Fifth Amendment under Adarand Constructors, Inc.
v. Pena. 115 S. Ct. 2097 (1995). In Adarand. the Supreme Court held, with regard to a race-
based preference program under federal law, that courts must employ strict scrutiny to determine
whether a racial classification is narrowly tailored to further a compelling government interest.
115 S. Ct. at 2113. The Commission explained that its EEO rule does not require that any
person be hired or given a hiring preference based on race. The rule only requires that licensees
make efforts to recruit minority and women applicants so that they will be assured access to the
hiring process. Thus, the Commission found that the EEO rule, applied to the Church here,
does not result in the deprivation of a constitutional right on the basis of race, and, furthermore,
that the Church had not even identified any person who arguably suffered any such injury.
Commission Order. 12 FCC Red at 2159 (JA ___).
Finally, the Commission was unpersuaded by the Church’s reliance on the Religious
Freedom Restoration Act of 1993, 42 U.S.C. 2000bb-l ("RFRA"). The RFRA states that the
government may not "substantially burden" the free exercise of religion without a compelling
justification. The Commission noted that the Church acknowledged that the RFRA codified the
12
holding of a Supreme Court case which pre-dated Kine’s Garden, and hence did not provide
support for the Church’s contention that later legal developments invalidated the Kine’s Garden
rationale. More importantly, the Commission held that it is not a substantial burden on a
religious entity that holds broadcast stations to comply with the Commission’s EEO rules for
those employees not involved with espousing its religious views over the air. Commission
Order. 12 FCC Red at 2159-60 (JA ___-___).
(2) Candor Issue. The Commission agreed with the Board that the Church’s
narrative description of its EEO recruitment policies in its renewal applications was seriously
misleading because the statement created a false impression that the licensee’s program fully
comported with Commission requirements whereas, in fact, the licensee’s EEO recruitment
program had fallen into noncompliance. The Commission found intent to deceive by the licensee
because its operations manager for the stations throughout the license term, general manager of
the stations for about a year, and the individual responsible for EEO matters, was familiar with
the licensee’s hiring practices and had to know that its statement in the renewal applications
describing its EEO program was not fully reflective of the facts. In view of this knowledge, the
Commission concluded that the manager and the licensee wished not to provide the Commission
with a detailed and accurate picture of the stations’ EEO efforts because of the likelihood that
serious questions would be raised about their renewal applications. Commission Order. 12 FCC
Red at 2162-63 (JA ___-___).
The Commission also reinstated the lack of candor finding made by the ALJ, which the
Board declined to resolve, pertaining to the alleged classical music "requirement" at the
commercial FM radio station licensed to the Church. It is undisputed that the Church used those
representations to argue that the Commission should not rely on general labor force statistics in
13
evaluating the licensee’s EEO program, but should consider instead the licensee’s showing that
few minorities in the area possessed the requisite background. The record established, however,
that classical music knowledge, though desirable, was not in fact a requirement for salespersons
at KFUO-FM; that only eight of the fifteen individuals employed in sales positions at the station
during the license term actually had some classical music background, or experience working
at a classical music station, or listened to KFUO-FM at the time they were hired; and that,
toward the end of the license term, station management began to believe that general sales
experience was equally valuable. Commission Order. 12 FCC Red at 2164 (JA ___).
In reviewing the record, the Commission explained that it had been concerned from the
beginning of the proceeding with the licensee’s representation that it restricted its recruitment
efforts at KFUO-FM because of its classical music criterion. It found that the stations’
operations manager, who was familiar with the licensee’s EEO activities and hiring practices,
acquiesced in the filing of the misleading information because he was motivated by his
knowledge of the licensee’s inadequate recruitment efforts and by a desire to justify the deficient
practices at the FM station. The Commission rejected the view that the lay status of the stations’
operations manager or reliance on counsel negated any intent to deceive. Commission Order.
12 FCC Red at 2164-65 (JA ___-___).
(3) Remedies and Sanctions. The Commission affirmed the remedy of reporting
conditions on the full-term license renewals of the Church’s radio stations as a consequence of
its serious EEO infractions. The Commission explained that requiring the Church to file reports
annually over a three-year period detailing its recruitment efforts is supported by action in other
Commission cases involving comparable recruitment deficiencies and is also warranted because,
despite receiving advice during the license term from counsel and Lauher, the former general
14
manager of the FM station, regarding the seriousness of the Commission’s requirements, the
licensee did not comply with the Commission’s EEO rule. The Commission determined that a
formal mechanism to monitor compliance was thus appropriate. With regard to positions exempt
under King’s Garden, the Commission held that the Church should indicate in its reports any
such positions for which it did not recruit. The Commission, however, deleted the short-term
renewal imposed by the Board. Commission Order. 12 FCC Red at 2165-66 (JA __ -___).
Finally, based on its finding involving the licensee’s intentionally misleading
representation that classical music was a job requirement at KFUO-FM, the Commission
imposed a monetary forfeiture in the amount of $25,000, the maximum permitted for each
violation of the Commission’s rules under 47 U.S.C. 503(b). In so doing, the Commission, in
accordance with 47 U.S.C. 503(b)(2)(D), took into account the nature, circumstances, extent,
and seriousness of the violation. Although the Commission also found that the second episode
of lack of candor, involving the licensee’s misleading description of its recruitment program in
its renewal applications, normally would warrant the imposition of an additional forfeiture, as
assessed by the ALJ and the Board, a forfeiture based on this misconduct was barred by the
statute of limitations. In imposing a monetary forfeiture for lack of candor, the Commission
employed its broad discretion in the choice of sanctions, as determined by the record evidence.
See Policy Reearding Character Qualifications in Broadcast Licensing. 102 FCC 2d 1179, 1210-
11 (1986) ("Character Policy Statement"). Commission Order. 12 FCC Red at 2166-68 (JA
___-___)•
The Church did not file a petition for reconsideration of the Commission’s Order
pursuant to 47 U.S.C. 405. This appeal followed.
15
SUMMARY OF ARGUMENT
The Commission reasonably concluded that the Church should be assessed a monetary
forfeiture because it lacked candor in informing the Commission that knowledge of classical
music was a job "requirement" at the Church’s commercial FM radio station, KFUO-FM. The
Commission’s candor finding was supported by substantial evidence in the record and the
forfeiture ($25,000) was well within the Commission’s broad discretion in fashioning sanctions.
The decision to impose reporting conditions as a remedy for the Church’s violations of
the Commission’s EEO rules was also reasonable and in accordance with Commission precedent
and this Court’s decision in the Kine’s Garden case. There is no merit to the Church’s argument
that King’s Garden is no longer good law. The Commission’s decision requiring the Church,
a broadcast licensee, not to discriminate on religious grounds in hiring broadcast personnel was
a reasonable exercise of the FCC’s public interest responsibilities under the Communications
Act. The Court’s decision in King’s Garden resolved essentially identical First Amendment
arguments as presented by the Church here. King’s Garden is controlling and calls for rejection
of those arguments once again. Neither the Supreme Court’s decisions in Amos nor the
Religious Freedom Restoration Act calls for a different result.
The Church’s equal protection argument also must be rejected. First, the Church lacks
standing to raise an equal protection claim since it does not contend that it has itself been denied
equal protection, and there is no basis for it to assert the equal protection rights of third parties.
In any event, the Commission’s EEO rule is not subject to heightened scrutiny under Adarand
because it does not establish a scheme of racial or gender preferences or hiring quotas. Beyond
prohibiting actual discrimination, the rule only requires outreach and recruitment in order to
expand the pool of eligible applicants.
16
The Church’s First Amendment free speech claim was not raised before the Commission
and may not be presented for the first time on judicial review. However, there is no basis to
contend that requiring compliance with the EEO rule impedes in any meaningful way the
Church’s ability to express its religious or other viewpoints.
Finally, the Church’s argument that the Commission was required to re-examine the EEO
rules "underlying premises" before it could apply the rule in this case also should not be
considered because it was not raised before the FCC. In any event, claims that a rule should
be modified, eliminated or simply re-examined is a matter for consideration in a rule making
proceeding. A proceeding to re-examine the EEO rule is currently before the agency, and
comments have been filed that make much the same argument as the Church makes here. If the
Church is aggrieved by the Commission’s resolution of that proceeding, judicial review will be
available.
STANDARD OF REVIEW
The standard of review is set out in Section 706(2)(A) of the Administrative Procedure
Act, 5 U.S.C. 706(2)(A), which permits the Court to set aside agency action only if it is
"arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." "The
court must determine whether the agency has articulated a ’rational connection between the facts
found and the choice made,’" and the court "may reverse only if the agency’s decision is not
supported by substantial evidence, or the agency has made a clear error in judgment." Kisser
v. Cisneros. 14 F.3d 615, 619 (D.C. Cir. 1994), citing Bowman Transportation v. Arkansas-
Best Freight System. 419 U.S. 281, 285 (1974) and Citizens to Preserve Overton Park v. Volpe.
401 U.S. 402, 415-16 (1971). See Freeman Engineerine Associates. Inc, v. FCC. 103 F.3d
169, 178 (D.C. Cir. 1997).
17
Insofar as the Church claims that the Commission’s action in this proceeding violated the
Church’s constitutional rights under the First and Fifth Amendments, independent judicial review
of those claims is appropriate. See, e .e .. Syracuse Peace Council v. FCC. 867 F.2d 654, 679
(D.C. Cir. 1989), cert, denied. 493 U.S. 1019 (1990) (Starr, J., concurring).
ARGUMENT
I. THE COMMISSION’S DECISION TO IMPOSE A $25,000
FORFEITURE AGAINST THE CHURCH FOR LACK OF CANDOR
IS SUPPORTED BY SUBSTANTIAL EVIDENCE IN THE RECORD
The Commission did not abuse its discretion or act arbitrarily or capriciously when it
imposed a monetary forfeiture of $25,000 against the Church after finding that the Church had
intentionally lacked candor in representing in its pleadings that knowledge of classical music was
a "requirement" for sales positions at KFUO-FM. This decision was supported by substantial
evidence in the record and was a reasonable exercise of the Commission’s broad discretion. This
Court has held that "questions respecting misrepresentations of fact are, perforce, fact questions
peculiarly within the province of the Commission to consider." WEBR, Inc, v. FCC. 420 F.2d
158, 164 (D.C. Cir. 1969); accord. Press Broadcasting Co.. Inc, v. FCC. 59 F.3d 1365, 1371
(D.C. Cir. 1995); American Message Centers v. FCC. 50 F.3d 35, 41 (D.C. Cir. 1995).
Moreover, in reviewing the agency’s resolution of allegations of misrepresentation, the Court
has also stated that it ”look[s] only to see whether the [agency’s] conclusions and findings are
supported by substantial evidence and that they are not arbitrary or capricious." WHW
Enterprises. Inc, v. FCC. 753 F.2d 1132, 1139 (D.C. Cir. 1985).
In determining whether there is substantial support in the record for the agency’s
decision, the reviewing court, unlike the agency, does not look for a preponderance of the
evidence, because substantial evidence "can be something less than the weight of the evidence."
18
Consolo v. FMC. 383 U.S. 607, 620 (1966) (citations omitted). Rather, "substantial evidence"
need be only "such relevant evidence as a reasonable mind might accept as adequate to support
a conclusion." Millar v. FCC. 707 F.2d 1530, 1540 (D.C. Cir. 1983), quoting Consolidated
Edison Co. v. NLRB. 305 U.S. 197, 229 (1938). This standard can be satisfied even if there
is also substantial evidence to the contrary. Lorain Journal Co. v. FCC. 351 F.2d 824, 828
(D.C. Cir. 1965), cert, denied. 383 U.S. 967 (1966).
This case specifically involves a dispute over whether a Commission licensee lacked
candor in pleadings it filed with the Commission in connection with its license renewal
applications. Under the substantial evidence test, the Court "must determine whether ’the
agency . . . could fairly and reasonably fmd the facts as it did.”' Chritton v. NTSB. 888 F.2d
854, 856 (D.C. Cir. 1989), quoting Western Airlines. Inc, v. CAB. 495 F.2d 145, 152 (D.C.
Cir. 1974). Thus, to prevail, the Church must persuade the Court that it is unreasonable to
conclude from the record below that the Church lacked candor with the Commission. An
examination of the record shows, however, that the Commission’s decision to impose a forfeiture
for lack of candor was reasonable and supported by substantial evidence. The Commission
carefully considered the record evidence, based on the undisputed findings of fact by the A U ,
and reasonably concluded that the Church lacked candor in twice representing that knowledge
of classical music was a job "requirement" at its commercial FM radio station.
The Church argues (Brief at 40-43) that it did not intend to deceive the Commission by
representing that a classical music background was "required" for sales positions at KFUO-FM.
Specifically, it contends (Brief at 40) that counsel who drafted its pleadings believed the legal
argument presented was legitimate even if the Church did not have an absolute "requirement"
for classical music knowledge, but only a "preference." The Church asserts that it did not know
19
its counsel’s argument could be viewed as lacking candor and claims that the Commission’s
decision cannot be squared with Fox Television Stations. Inc.. 10 FCC Red 8452, 8501 n. 68
(1995), recon, denied. 11 FCC Red 7773 (1996) ("Fox"), where the Commission -- on
substantially different facts — declined to find a lack of candor where the licensee had not
"second guessed" its attorney, but relied on the attorney’s advice in good faith. The Church
complains (Brief at 43) that the Commission cannot justify a $25,000 forfeiture in this case
"based on a quibble about the use of one word."
These arguments are without merit. The Commission properly concluded that the
requisite intent to deceive was present on this record. To begin with, the Commission correctly
found that the Church’s representation that a classical music background was "required" at the
FM station was more than just a matter of semantics involving the misuse of a particular word
because the Church also represented in its pleadings that sales positions "can only be filled" by
persons with expertise in classical music and that certain employees "must have" specialized
skills. This is a far cry from saying that such experience was merely "preferred" or desirable.
The clear difference in the meaning of these words is important here because, by claiming that
classical music experience was absolutely required, rather than just preferred, and that few
minorities possessed this experience, the Church was trying to persuade the Commission that the
labor force from which it could draw qualified minorities was extremely small and that its failure
to recruit minorities at the FM station was therefore justified. Had the Church claimed in its
pleadings that such experience was merely desirable, rather than an essential job requirement,
its position would have been severely attenuated.
As to the Church’s reference to its counsel’s role, the Commission explained that this
case is unlike Fox, where the foreign ownership question involved a technical issue in a complex
20
area of law, making reliance on counsel particularly appropriate. Commission Order. 12 FCC
Red at 2164 (JA ___). See Fox, 10 FCC Red at 8500. Rather, what was involved here was not
the use of formal legal terms, which required the understanding of legal concepts, but commonly
understood words which the stations’ operations manager himself had used in his correspondence
with counsel. One need not have legal training to understand the difference between a
"requirement" and a "preference." Moreover, the operations manager was not a neophyte in
these matters, but had years of broadcast management experience at the stations, and was
sophisticated and careful in his choice of language. See Initial Decision. 10 FCC Red at 9888
164 (JA ___).
Furthermore, whereas Fox was concerned with the licensee having to second guess its
attorney’s advice, this case presents a very different situation because, here, the licensee
(through its operations manager ) told its attorney of its classical music requirement. The
attorney used this information supplied by Stortz as the premise for her legal argument to the
Commission that the station’s need for highly specialized skills made reliance on general labor
force statistics meaningless, and that the licensee’s inadequate recruitment efforts should
therefore be excused because there were few minorities who possessed the requisite experience.
Counsel could not have made this argument if Stortz had not given her the information in
question. And, unlike counsel, the Church’s Operations Manager during the entire license term
knew prior to the filing of the pleadings containing the misleading information that the station,
in fact, hired people without a classical music background. Initial Decision. 10 FCC Red at
9916 11 249-250 and n. 26 (JA ___-___).
Thus, whatever counsel may have subsequently believed about the legitimacy of the legal
argument, the underlying information provided by the stations’ operations manager which formed
21
the basis for this argument was false, and he knew this to be the case because he was the
individual most familiar with the Church’s hiring practices and was well aware of the stations'
EEO shortcomings. Nevertheless, he knowingly acquiesced in the filing of this false information
with the Commission on two occasions in a deliberate attempt to justify the station’s deficient
recruitment practices. By concealing the complete truth and failing to be fully forthcoming and
informative, the Church lacked candor in violation of 47 C.F.R. 73.1015.
In sum, this case involves much more than simple good faith reliance on counsel. See
WADECO. Inc, v. FCC. 628 F.2d 122, 129 (D.C. Cir. 1980) (applicant held accountable where
principal knew of misrepresentations at the time they were made); Asheboro Broadcasting Co..
20 FCC 2d 1, 3 (1969) (advice of counsel "cannot excuse a clear breach of duty by a licensee").
The Commission thus correctly concluded that the Church’s lack of candor was intentional. See
Leflore Broadcasting Co.. Inc, v. FCC. 636 F.2d 454, 462 (D.C. Cir. 1980) ("Leflore")
(deceptive intent may be found where there is a false statement together with knowledge of its
falsity); RKO. 670 F.2d at 225 (indifference and wanton disregard for the accuracy of
representations is "equivalent to an affirmative and deliberate intent"); Black Television
Workshop. 8 FCC Red 4192, 4198 n. 41 (1993), recon, denied. 8 FCC Red 8719 (1993), rev,
denied. 9 FCC Red 4477 (1994), a ff d sub nom. Woodfork v. FCC. 70 F.3d 639 (D.C. Cir.
1995) (table); ("Intent is a factual question that can be inferred if other evidence shows that a
motive or logical desire to deceive exists, as is the case here.")1
1 The Church’s reliance on Roy M. Speer. 11 FCC Red 18393 (1996), is inapposite. That
case involved a complex question of transfer of control where allegations of misrepresentation
or lack of candor were rejected because, unlike the situation here, there was no apparent intent
or motive to deceive the Commission. The Church’s related claim (Brief at 43) that it is being
subjected to disparate treatment on this score in violation of the principle set forth in Melody
Music. Inc, v. FCC. 345 F.2d 730 (D.C. Cir. 1965), is without merit. As explained above, the
(continued...)
22
Administrative agencies enjoy wide latitude in determining what remedies and sanctions
are appropriate to enforce the law in a given case. See Butz v. Glover Livestock Commission
Co.. Inc.. 411 U.S. 182 (1973); Columbia Gas Transmission Co. v. FERC. 750 F.2d 105, 109
(1984). In Butz. the Supreme Court held that the permissible scope of judicial review of a
sanction imposed by an administrative agency is limited to whether the sanction was
"unwarranted in law" or "without justification in fact." 411 U.S. at 186. This Court has held
that an agency’s discretion is "at [its] zenith when the action assailed relates primarily not to the
issue of ascertaining whether conduct violates the statute, or regulations, but rather to the
fashioning of . . . remedies and sanctions." Niagara Mohawk Power Corn, v. FPC. 379 F.2d
153, 159 (D.C. Cir. 1967).
This broad agency discretion extends specifically to the FCC when it has found
misconduct in a licensing proceeding and must determine the remedial action that would best
serve the public interest. See FCC v. WOKO. Inc.. 329 U.S. 223, 227-28 (1946) ("WOKO");
West Coast Media. Inc, v. FCC. 695 F.2d 617, 622 (D.C. Cir. 1982), cert, denied. 464 U.S.
816 (1983); RKO, 670 F.2d at 237; Leflore. 636 F.2d at 463. This Court has consistently
reaffirmed that the FCC enjoys this broad discretion when it considers the appropriate sanction
for licensee misconduct, such as lack of candor, even where the sanction imposed is different
from that imposed in other cases "’that seem comparable.’" Continental Broadcasting. Inc, v.
FCC, 439 F.2d 580, 583 (D.C. Cir.), quoting WOKO. Inc.. 329 U.S. at 228; see also White
Mountain Broadcasting Co. v. FCC. 598 F.2d 274, 279-80 (D.C. Cir.), cert, denied. 444 U.S.
^...continued)
factual circumstances in those cases were entirely different. In any event, this argument was not
presented to the Commission in the first instance and is therefore barred under 47 U.S.C. 405.
See American Tel. & Tel. Co. v. FCC. 974 F.2d 1351, 1354 (D.C. Cir. 1992).
23
963 (1979); Greater Boston Television Corp. v. FCC. 444 F.2d 841, 857 (D.C. Cir. 1970),
cert, denied. 403 U.S. 923 (1971) ("Discretion is particularly broad when an agency is
concerned with fashioning remedies and setting enforcement policy.")
In this case, the Commission reviewed the record and reasonably concluded that the
Church’s lack of candor in its representations involving the classical music requirement at
KFUO-FM warranted the imposition of a $25,000 monetary forfeiture. In reaching this result,
the Commission clearly described the misconduct in question, which it found involved far more
than the misuse of a single word, and fully considered the nature, circumstances, extent, and
seriousness of the violation. See 47 U.S.C. 503(b)(2)(D). It also evaluated the Church’s
conduct in accordance with established Commission policy in this area. See Character Policy
Statement, 102 FCC 2d at 1227-1228 (in judging weight to be accorded specific acts of
misconduct, Commission considers willfulness, frequency, and currentness of behavior, as well
as its seriousness, the participation of station owners and managers, and other relevant factors).
"Ever since the Supreme Court’s decision in rWOKOl (footnote omitted), it has been
clear that the Commission may refuse to renew a license where there has been willful and
knowing misrepresentation or lack of candor in dealing with the Commission." Leflore. 636 at
461. Certainly, the Commission’s imposition of the lesser sanction of forfeiture where the
record establishes a deliberate lack of candor is well within the Commission’s discretion and is
not arbitrary or capricious.
II. THE FCC’S EEO RULE, AND THE AGENCY’S ACTION IN THIS
CASE, ARE LAWFUL AND REASONABLE EXERCISES OF ITS AUTHORITY
UNDER THE COMMUNICATIONS ACT TO ENSURE THAT BROADCAST
LICENSEES OPERATE IN THE PUBLIC INTEREST.
The Church does not argue that the FCC’s conclusion that it had not met the
requirements of the EEO rule was unsupported by the record or otherwise unreasonable. Rather,
24
the Church and its supporting amici have undertaken a broad statutory and constitutional attack
on both the Commission’s action in this case and on the underlying EEO rule, which requires
simply that all entities that choose to be licensees of a broadcast station (1) refrain from
employment discrimination on the basis of race, color, religion, national origin, or gender and
(2) establish and maintain an EEO program reflecting positive and continuing efforts to recruit
qualified women and minorities. The opposing parties’ First Amendment speech and religion
arguments, their Fifth Amendment equal protection argument and their statutory argument in
reliance on the Religious Freedom Restoration Act all fail to demonstrate that the FCC’s EEO
rule generally, or its action in this case specifically, are unlawful.
A. The Church’s First Amendment Free Exercise And
Establishment Challenges To The EEO Rule And To Its Application
In This Case Conflict With King’s Garden. Which Is Controlling.
The Church’s First Amendment religion arguments are erroneously based on a funda
mental failure to recognize or acknowledge that it is subject to the FCC’s regulation not because
it is a religious organization but because it has chosen to be the licensee of two radio broadcast
stations. As this Court has recognized in the specific context of religious organizations which
seek the benefits of a broadcast license unencumbered by the same obligations faced by non
religious licensees, broadcast licenses come with enforceable public obligations. See King’s
Garden. 498 F.2d at 59-60. These obligations include compliance with the FCC’s EEO rule
with respect to employment positions not reasonably connected with espousal of the licensee’s
religious views. Essentially the same arguments as the Church and its supporting amici make
in their briefs were rejected by the Court more than twenty years ago in King’s Garden, and that
decision continues to be controlling. Contrary to the claims of opposing parties, nothing has
changed in the ensuing period that compels, or warrants, a different result in this case.
25
The FCC’s EEO rule does not violate the Church’s rights under the Free Exercise Clause
of the First Amendment. The Church is a broadcast licensee and as such possesses no greater
rights than any other broadcast licensee. The Court has observed in upholding the FCC’s award
of a license to a religious organization that, "[t]he religious orientation of a licensee is an
irrelevant factor." Noe v. FCC. 260 F.2d 739 (1958), cert, denied. 359 U.S. 924 (1959); see
also Scott v. Rosenberg. 702 F.2d 1263, 1272 (9th Cir. 1983), cert, denied. 465 U.S. 1078
(1984)("The FCC grants licenses and regulates the public airwaves without differentiating
between religious and secular broadcasters."). "Licenses to broadcast do not confer ownership
of designated frequencies, but only the temporary privilege of using them.” Red Lion
Broadcasting Co. v. FCC. 395 U.S. 367, 394 (1969). Once a licensee has sought and been
"granted the free and exclusive use of a limited and valuable part of the public domain," the
license it receives "is burdened by enforceable public obligations." Office of Communication
of the United Church of Christ v. FCC. 359 F.2d 994, 1003 (D.C. Cir. 1966); see also
Brandywine-Main Line Radio. Inc, v. FCC. 473 F.2d 16 (D,C. Cir. 1972), cert, denied. 412
U.S. 922 (1973). These "enforceable public obligations" have been imposed on all other
broadcast licensees only because they voluntarily decided to engage in broadcasting. The
Church cannot claim a wholesale exemption merely because it is a religious organization.
What is more, the FCC’s EEO rule expressly recognizes the Church’s First Amendment
rights as a religious organization. The Commission has withheld application of its EEO rule
with respect to employment "connected with the espousal of the licensee’s religious views." See
Complaint by Anderson. 34 F.C.C.2d 937, 938 (1972); see also Request of National Religious
Broadcasters. Inc.. 43 F.C.C.2d 451 (1973). On its face, this exemption is sufficiently broad
to protect the Church’s rights under the Free Exercise Clause of the First Amendment because
26
it permits it to hire employees sympathetic to its religious orientation to espouse its religious
views over the air. As this Court has noted, while the exemption will require the FCC to
determine what jobs involve the espousal of religion, the Commission has traditionally been
permitted to apply its expertise in the field of broadcasting to complex First Amendment
problems. See King’s Garden. 498 F.2d at 60, citing Columbia Broadcasting System, Inc, v.
Democratic National Comm.. 412 U.S. 94, 102-03 (1973); Red Lion Broadcasting Co.. 395
U.S. at 386-401. To argue that this evaluation procedure results in excessive entanglement of
church and state ignores the fact, as we have noted, that the Church’s relationship with the FCC
arises not from its status as a church but from its status as a federally regulated broadcast
licensee, which also happens to be a religious organization.
Regardless of the licensee’s religious affiliation, the Commission is responsible under the
Communications Act for assuring that broadcast stations are operated in the public interest. The
Church’s religious affiliation gives it no exemption either from the Communications Act or from
the FCC regulations thereunder. Indeed, were it to enjoy such a special status, serious questions
might arise under the Establishment Clause, which "prohibits government from abandoning
secular purposes in order to put an imprimatur on one religion, or on religion as such, or to
favor the adherents of any sect or religious organizations." Gillette v. United States. 401 U.S.
437, 450 (1971).
As noted above, the Court’s decision in King’s Garden is controlling here. The Church’s
claims to the contrary are unpersuasive. Its contention, for example, that the rule
"unquestionably interferes with the Church’s management of its internal affairs" (Brief at 28)
is in direct conflict with the holding in King’s Garden. There, the Court rejected a similar
argument that "King’s Garden’s radio station is an integral part of the sect’s ‘missionary’
27
structure," concluding that "the argument’s premise is defective." 498 F.2d at 60. The Court
explained that "[a] religious sect has no constitutional right to convert a licensed communications
franchise into a church. A religious group, like any other, may buy and operate a licensed radio
or television station. . . . But like any other group, a religious sect takes its franchise ‘burdened
by enforceable public obligations.’" IcL2 See also Scott v. Rosenbereer. 902 F.2d at 1272
("[CJourts have approved the application of FCC rules to religious groups on the same basis as
applied to secular groups.")
The Church’s additional contention (Brief at 29) that the decision in Corporation of the
Presiding Bishop v. Amos, effectively overturns King’s Garden was properly rejected by the
Commission. Amos upheld the constitutionality of the 1972 amendment to the Civil Rights Act
of 1964 (42 U.S.C. 2000e-l) exempting the "activities" of religious organizations from the Act’s
ban on religious discrimination in employment. See 483 U.S. 327. As the Commission
correctly pointed out, and the Church does not dispute, Amos was not a broadcast case, the
decision did not discuss or review the Commission’s EEO requirements and thus did not affect
the holding of King’s Garden
that the broader exemption of all activities of religious organizations in Section
702 [of the Civil Rights Act] was simply not relevant to the Commission’s regu
lation of the EEO practices of broadcast licensees under the public interest
standard of the Communications Act. ... Since the Commission’s EEO policies
are not founded on the Civil Rights Act, there is nothing in Amos that supports
a conclusion that the Commission’s lack of a comparable exemption in its EEO
rules and cases is unconstitutional.
- This also is an essentially complete answer to the claims of amici, including the contention
that the EEO rule imposes an unconstitutional condition on the Church, which similarly fails to
recognize that the nlle applies to the Church in the role it has voluntarily chosen to undertake
as a broadcast licensee. It is not subject to the rule because it is a religious organization, nor
does the rule regulate its activities outside the operation of the stations. See Center for Individ.
Rights Brief at 5, 21-25, Aiperican Center Brief at 9-16.
28
Commission Order. 12 FCC Red at 2158 110 (JA ___). The Commission also noted that the
Supreme Court had previously recognized that the FCC’s authority to adopt its EEO rule "‘can
be justified as necessary to enable the FCC to satisfy its obligations under the Communications
Act ... to ensure that its licensees’ programming fairly reflects the tastes and viewpoints of
minority groups.’" IcL at 2157 n.5 (JA ___), quoting NAACP v. FPC. 425 U.S. 662, 670 n.7
(1976). This language simply reinforces the clear holding of King’s Garden that the FCC
application of its EEO rule to licensees which are religious organizations is based on the
Communications Act, not the Civil Rights Act that was at issue in Amos.
Additionally, the Commission correctly rejected the Church’s argument that Amos
overturned King’s Garden by holding that the government may not interfere in job
determinations without "chilling" religious freedom because the Supreme Court expressly stated
that it had no occasion to pass on the argument that the Section 702 exemption is required by
the Free Exercise Clause. See 483 U.S. at 339 n. 17. King’s Garden had found no conflict
between the Commission’s limited EEO exemption and the Free Exercise Clause, whereas Amos
found no conflict between the broader Section 702 exemption and the Establishment Clause. See
Commission Order. 12 FCC Red at 2158 (JA ___).
Moreover, the Court’s more recent free exercise cases have held that exemptions for
religious organizations from generally applicable laws are the exception, and that "a consti
tutional right to ignore neutral laws of general applicability" would produce "an anomaly in the
law ■ . . City of Boeme v. Flores. 117 S.Ct. 2157, 2161 (1997). "‘[Gjovemment’s ability
to enforce generally applicable prohibitions of socially harmful conduct . . . cannot depend on
measuring the effects of a governmental action on a religious objector’s spiritual development.
To make an individual’s obligation to obey such a law contingent upon the law’s coincidence
29
with his religious beliefs, except where the State’s interest is "compelling" . . . contradicts both
constitutional tradition and common sense.’" Ich, quoting Employment Div. v. Smith. 494 U.S.
872, 885 (1990).
The Church’s three-paragraph claim (Brief at 31-32) that the EEO rule also violates the
establishment clause of the First Amendment because it "causes excessive governmental
entanglement with religion" relies on the proposition that the exemption from the rule’s
requirements with respect to religious discrimination for employment positions reasonably
connected with espousal of the Church’s religious views establishes a "process of testing and
evaluating religious matters in an effort to second-guess the Church’s good faith judgments ...."
Brief at 32. Although this terse argument seems couched in "as applied" terms, it is, in fact,
a "facial” challenge to the rule.3 The Court in King’s Garden fully considered the need for and
potential problems created by the exemption and held it to be "facially adequate." 498 F.2d at
61. The Court explained:
The Commission has set itself the difficult task of drawing lines between the
secular and religious aspects of the broadcasting operations of its sectarian
licensees. Though this is a delicate undertaking, it is one which the First
Amendment thrusts upon every public body which has dealings with religious
organizations. . . . The courts have traditionally granted the FCC considerable
leeway to work out the difficult First Amendment problems endemic to a system
of licensed communications. . . . As presently formulated, the Commission’s
religious exemption is facially adequate. Problems of application there may be,
but they will be questions for another day.
3 The Church refers in its fact statement to questions posed by FCC counsel to Church wit
nesses at the hearing that it apparently believes "delved into theological matters." Brief at 12-
13, 31. Although the cited questions seem innocuous and relevant, even if isolated questions
at the hearing could be considered to have been inappropriate, the Church does not point to any
action taken by the Commission that even arguably could constitute an unconstitutional
application of the limited religious exemption to the Church in this proceeding.
30
Id. The Church has not demonstrated that the application of the rule to the facts of this case was
in any way improper.
B. The Church’s First Amendment Speech Arguments Are
Not Properly Before The Court And, In Any Event, Are Invalid.
The Church’s contention (Brief at 32-35) that application of the FCC EEO rule to it
"constitutes a form of viewpoint discrimination" that violates its free speech rights under the
First Amendment was never made to the Commission and may not be raised for the first time
on judicial review. Section 405 of the Communications Act, 47 U.S.C. 405, bars judicial
review of claims that have not been presented first to the Commission. The Court has
"construed this section as codifying the exhaustion of administrative remedies doctrine, which
‘requires complainants, before coming to court, to give the FCC a fair opportunity to pass on
a legal or factual argument.’" American Tel. & Tel. Co.. 974 F.2d at 1354, quoting City of
Brookings Mun. Tel. Co. v. FCC. 822 F.2d 1153, 1163 (D,C. Cir. 1987); see also American
Scholastic TV Programming Foundation v. FCC. 46 F.3d 1173, 1177-78 (D,C. Cir. 1995).
This is true even if the issue raised involves a constitutional challenge to a Commission
regulation or to the Commission’s interpretation of a statute. See Adelphia Communications
Corp. v. FCC. 88 F.3d 1250, 1255-56 (D.C. Cir. 1996); Northwestern Indiana Tel. Co. v.
FCC, 872 F.2d 465, 470 (D.C. Cir. 1989), cert, denied. 493 U.S. 1035 (1990).
In any event, the Church’s argument fails because the claim that the FCC’s EEO rule
"is a prime example of content-based regulation" (Brief at 34) is factually incorrect. As noted
above, the Commission has expressly withheld application of the EEO rule to those employees
hired to espouse "a particular religious philosophy over the air . . . ." It is ironic in this regard
that the Commission’s efforts to avoid interference with the ability of a broadcast licensee, who
also happens to be a religious organization, to espouse its religious viewpoints by discriminating
31
in employment in a manner not open to licensees who are not religious organizations is ignored
by the Church. The FCC’s EEO rule, of course, has no effect whatsoever on the Church’s
ability to espouse its viewpoints outside of its broadcast stations, and the Church offers no
understandable explanation as to how the EEO rule impinges in any material way on its ability
to espouse it viewpoints on the radio stations of which it is the licensee. Taking as true that it
"is a speaker with a unique viewpoint" that provides "an independent source of value-laden
programming" (Brief at 33), the EEO rule simply does not limit its ability to continue to provide
that programming.
C. The Adarand Decision Does Not Affect The Validity Of The FCC’s EEO
Rule Under The Fifth Amendment Or Its Application Of The Rule In This Case.
1. The Church Lacks Standing To Raise An Equal
Protection Challenge To The Commission’s EEO Rule.
It is well established that, in order to satisfy the standing requirements of Article III, a
plaintiff must demonstrate (1) that it has suffered injury that is concrete and particularized; (2)
that the injury is fairly traceable to the conduct of which it complains; and (3) that the injury is
likely to be redressed by a court decision in its favor. See Lujan v. Defenders of Wildlife. 504
U.S. 555, 560-61 (1992); Suncom Mobile & Data. Inc, v, FCC. 87 F.3d 1386, 1388 (D.C. Cir.
1996). "When the injury alleged is the denial of equal protection, plaintiffs must also allege that
they are being denied equal treatment solely as a result of the classification they are
challenging." Jacobs v. Barr. 959 F.2d 313, 316 (D.C. Cir. 1992).
The Church’s challenge to the EEO rule as violating the equal protection component of
the Fifth Amendment fails to demonstrate such injury. The Church does not allege any Fifth
Amendment equal protection injury to itself at all. The Church’s equal protection rights under
the Fifth Amendment plainly have not been invaded. The rule applies to all broadcasters.
32
Indeed the Church is less burdened by the rule than licensees that are not religious organizations
because the Commission, as discussed above, has withheld application of the rule in the case of
religious organization licensees for employees hired to espouse the licensee’s religious views
over the air. Moreover, the Church does not purport to represent individuals who have been
injured by the rule or otherwise to assert rights of third parties. As the Commission observed,
"the Church has not even identified any person who arguably suffered any such injury."
Commission Order. 12 FCC Red at 2159 513 (JA ___).
"[I]n certain circumstances a litigant may be given standing to assert particular legal
rights of third parties." Haitian Refugee Center v. Gracev. 809 F.2d 794, 808 (D.C. Cir.
1987). However, a party "‘generally must assert his own legal rights and interests, and cannot
rest his claim to relief on the legal rights or interest of third parties.’" Valley Forge Christian
College v. Americans United. 454 U.S. 464, 474 (1982), quoting Warth v. Seldin. 422 U.S.
490, 499 (1974). "If the government has directly interfered with the litigant’s ability to engage
in conduct together with the third party, for example, by putting the litigant under a legal
disability with criminal penalties, and if a statute or the Constitution grants the third party a right
to engage in that conduct with the litigant, the litigant has standing to challenge the government’s
interference by invoking the third party’s rights:" Haitian Refugee Center. 809 F.2d at 808.
Nevertheless, the Church has not claimed third party standing. In any event, third party standing
doctrine would be unavailing because, as we discuss elsewhere, the Church’s First Amendment
and Religious Freedom Restoration Act arguments are without foundation. The Church thus has
no statutory or constitutional right to employ particular third parties based on religious
preferences with which the EEO rule interferes.
33
Under these circumstances, the Court should find that the Church lacks standing to raise
its Fifth Amendment equal protection challenge to the EEO rule.
2. The EEO Rule Is Not Subject to Strict Scrutiny Under Adarand.
The contentions of the Church and amici that the FCC’s EEO rule violates the equal
protection component of the Fifth Amendment are based on a fundamental misunderstanding of
the rule.4 Indeed, in view of the Commission’s repeated explanations that the rule’s
requirements do not establish hiring preferences, quotas or set asides, it is difficult to understand
how the opposing parties can have read these statements and still characterize the rule as
imposing "race-based hiring preferences." American Center Brief at 8. As the Commission
explained in the order on review here, the EEO rule "does not require that any person be hired
or be given a hiring preference based on race." Commission Order. 12 FCC Red at 2159 ^13
(JA ___). What the rule requires, the Commission emphasized, is "that licensees make efforts
to recruit minority and women applicants so that they will be assured access to the hiring
process. Thus, the EEO rule, applied to the Church here, does not result in the deprivation of
a constitutional right on the basis of race, and the Church has not even identified any person
who arguably suffered any such injury." Icf Since the Supreme Court’s decision in Adarand
in 1995, the Commission has explained repeatedly that its EEO rule does not raise any of the
concerns that led the Court in that case to hold that a race-based preference program is subject
to "strict scrutiny," and therefore may be constitutionally applied only if demonstrated to serve
a compelling government interest and must be narrowly tailored to serve that interest. See
4 We do not understand the opposing parties’ Fifth Amendment argument to challenge the
non-discrimination requirement of the EEO rule, although their arguments based on the free
exercise clause of the First Amendment and the Religious Freedom Restoration Act, discussed
below, apparently challenge, both aspects of the rule.
34
Benchmark Radio. 11 FCC Red 8547, 8548-49 13 (1996) (footnotes omitted); WDOD of
Chattanooga. 12 FCC Red 6399, 6401-02 118-12 (1997); Davidson County Broadcasting Co..
12 FCC Red 3375, 3377-78 118-13 (1997); WCMS Radio Norfolk. 11 FCC Red 11081, 11082-
83 113-8 (1996); Tidewater Radio. 11 FCC Red 7814, 7814-16 113-8 (1996), reconsid. denied.
FCC 97-121 (Aug. 5, 1997).
The Commission has explained in detail how the EEO rule operates. See, e .g ..
Benchmark Radio. 11 FCC Red at 8549 14; Streamlining EEO Rules. 11 FCC Red at 5159-60.
The Commission emphasized below that this approach does not require that anyone be hired or
given a preference in hiring based on race or gender but requires simply that licensees "make
efforts to recruit minority and women applicants so that they will be assured access to the hiring
process." 12 FCC Rd a t__^13 (JA ___ ). The Church’s characterization of this efforts-based
process as "precisely the sort of racial classifications that the Supreme Court held in Adarand
must be justified by a compelling state interest" (Brief at 37) defies understanding. Similarly,
the Church’s suggestion (Brief at 8) that the Commission designated its application for
evidentiary hearing for failing to maintain "‘parity’ with the minority labor force" is not borne
out by the record. See HDO. 9 FCC Red at 921-24 H 22-26 (JA ___). The Court has
recognized that the Commission’s EEO rule does not require that licensees comply with
statistical quotas in hiring. See Florida State Conf.. 24 F.3d at 274.
The basis of the Commission’s broadcast EEO rule is the agency’s objective under its
general public interest authority to ensure that programming fairly reflects the viewpoints of
minority groups and women.5 Under its public interest authority contained in 47 U.S.C. 307(a)
5 See Implementation of Commission’s EEO Rules. Report to Congress. 9 FCC Red 6276
(1994); Nondiscrimination in Employment Practices. 23 F.C.C.2d 430 (1970); Nondiscrimina
tion in Employment Practices. 18 F.C.C.2d 240 (1969).
35
& (d) and 309(a), the Commission first adopted an EEO policy in 1968, reasoning that
discrimination in employment was inconsistent with the responsibility of each broadcaster, as
a public trustee, to made a good faith effort to ascertain and serve all elements of its
community.6
In 1969 the Commission adopted rules prohibiting employment discrimination based on
race, color, religion or national origin and requiring broadcast stations to establish, maintain and
carry out an EEO program.7 In 1976, in NAACP v. FPC. 425 U.S. 662, 670 n.7 (1976), the
Supreme Court observed that the FCC’s EEO regulations "can be justified as necessary to enable
the FCC to satisfy its obligation under the Communications Act of 1934 ... to ensure that its
licensees’ programming fairly reflects the viewpoints of minority groups."
In 1987, the Commission revised its method of EEO analysis to emphasize EEO efforts
rather than workforce statistics. The Commission requires that broadcast licensees demonstrate
good faith efforts to attract and consider an adequate pool of qualified minorities and women for
employment vacancies. See Broadcast EEO Report and Order. 2 FCC Red 3967 (1987);
Arkansas Educ. Tel. Comm’n. 3 FCC Red 1923 (1988).
In the 1992 Cable Act, the Commission’s EEO program received statutory recognition
when Congress required mid-term EEO reviews of television stations and prohibited the
Commission from revising either its EEO regulations or forms pertaining to licensees and
permittees of television stations in effect on September 1, 1992. 47 U.S.C. 334.
6 See Nondiscrimination in Employment Practices. 13 F.C.C.2d 766, 771 (1968).
7 Nondiscrimination in Employment Practices. 18 F.C.C.2d 240. In 1970, the Commission
added gender as a category to its nondiscrimination rule and adopted new rules to provide the
Commission with statistical data and to ensure that licensees would focus on the most effective
method of implementing equal employment practices. See Nondiscrimination in Employment
Practices. 23 F.C.C.2d 430.
36
In a 1994 Notice of Inquiry, the Commission reaffirmed the purpose of its EEO rule and
policies, stating: "The overriding goal underlying our EEO rules is to promote program
diversity. In addition, our EEO rules enhance access by minorities and women to increased
employment opportunities, which are the foundation for increasing opportunities for minorities
and women in all facets of the communications industry, including panicipation in ownership."
Implementation of EEO Rules. 9 FCC Red at 2047 1 1.
The principal objective of the Commission’s EEO rule for broadcast stations is to
encourage licensees to make good faith efforts to broaden and diversify the pool of available
qualified women and minorities. To this end, licensees are required actively to recruit women
and minorities for job vacancies. There is no requirement, however, that any individual be hired
on the basis of race or gender. In evaluating compliance, the Commission emphasizes a
licensee’s overall efforts; the EEO program does not provide a preference to any person or
group on the basis of race or gender. Finally, the Commission does not impose sanctions
against licensees for failure to hire minorities or women in specified numbers to fulfill any quota
or set aside.8
Because the Commission’s specific EEO program is an efforts-based approach that does
not mandate hiring any person based on race or gender, it is not implicated by Adarand.
8 See Broadcast EEO Report & Order. 2 FCC Red at 3967; Florida State Conf. of NAACP.
24 F.3d at 274 (noting that Commission’s EEO rule does not require minority employment to
meet numerical goals); Louisiana Broadcast Stations. 7 FCC Red 1503, 1505 (1992)(holding that
station that did not hire minorities nevertheless complied with EEO rule based on recruitment
efforts); Radio Seaway, Inc.. 7 FCC Red 5965, 5968 (1992)(holding that station that hired
minorities but failed to recruit minorities actively placed "undue emphasis on meeting our
processing guidelines" and, therefore, imposed reporting conditions); Miami Broadcast Stations.
5 FCC Red 4893, 4894 (1990) (stating that "failing to meet the Commission’s processing
guidelines does not in and of itself demonstrate the inadequacy of a licensee’s EEO efforts.
— [t]he Commission instead focuses on a station’s overall efforts to recruit, hire and promote
minorities").
37
contrary to the claims of the Church and amici. The Commission has cited with approval the
Department of Justice’s interpretation of the scope of Adarand, and nothing in the opposing
briefs demonstrate that the Commission’s reliance on that interpretation is incorrect. The
Department explained its interpretation in a 1995 memorandum:
Mere outreach and recruitment efforts ... typically would not be subject to
Adarand standards. Indeed, post-Croson cases indicate that such efforts are con
sidered race neutral means of increasing minority opportunity. In some sense,
of course, the targeting of minorities through outreach and recruitment campaigns
involves race-conscious action. But the objective there is to expand the pool of
applicants or bidders to include minorities, not to use race or ethnicity in the
actual decision. If the government does not use racial or ethnic classifications in
selecting persons from the expanded pool, Adarand ordinarily would be
inapplicable.
Memorandum to All Agency General Counsels from Walter Dellinger, Assistant Attorney
General, Office of Legal Counsel, United States Department of Justice, at 7 (June 28, 1995)
(footnotes omitted). The Department’s memorandum added that "[ojutreach and recruitment
efforts conceivably could be viewed as race-based decisionmaking of the type subject to Adarand
if such efforts work to create a ‘minorities-only’ pool of applicants or bidders, or if they are so
focused on minorities that nonminorities are placed at a significant competitive disadvantage.”
DOJ Memorandum at 7 n.13. This appears to be the type of concern that recently led the Ninth
Circuit to hold unconstitutional a California statute that mandated an outreach program
"requiring ‘good faith efforts to meet [percentage] goals’” of contract set asides for minorities,
women and disabled. See Monterey Mechanical Co. v. Wilson. ___ F.3d ___, 1997 WL
538757 (9th Cir., Sept. 3, 1997). As discussed above, the FCC EEO rule for broadcast
licensees does not operate to establish any such mandatory employment quotas nor does the rule
focus on minorities in a manner that would place non-minorities at a significant disadvantage.
See, ej*., 47 C.F.R. 73.2080(a)(3)(requiring licensee to communicate its EEO policy and
38
program and its employment needs "to sources of qualified applicants without regard to race,
color, religion, national origin, or sex....").
D. The Religious Freedom Restoration Act Does Not Prohibit The FCC’s Application
Of Its EEO Rule To The Church In Its Role As A Licensee Of Broadcast Stations.
The contentions of the Church and amici that the Religious Freedom Restoration Act
prohibits application of the FCC’s EEO rule against religious institutions which apply for and
receive licenses to operate broadcast stations, fails at the outset because they are unable to
demonstrate that the RFRA, which prohibits government from "substantially burdening]" a
person’s exercise of religion, is applicable to the FCC’s rule as applied to religious institutions
that choose to be licensees of broadcast stations.
Congress enacted the RFRA in response to the Supreme Court’s decision in Employment
Div. v. Smith, which upheld an Oregon statute of general applicability that made use of the drug
criminal. See 494 U.S. 872. In so doing, the Court rejected a free exercise challenge by
members of the Native American Church who ingested peyote for sacramental purposes. The
Court held that "government’s ability to enforce generally applicable prohibitions of socially
harmful conduct . . . cannot depend on measuring the effects of a governmental action on a
religious objector’s spiritual development. To make an individual’s obligation to obey such a
law contingent upon the law’s coincidence with his religious beliefs, except where the State’s
interest is ‘compelling’ . . . contradicts both constitutional tradition and common sense." IcT
at 885.
The RFRA prohibits ”[g]ovemment" from "substantially burdening]" a person’s exercise
of religion even if the burden results from a rule of general applicability unless the government
can demonstrate the burden "(1) is in furtherance of a compelling governmental interest; and (2)
is the least restrictive means of furthering that compelling governmental interest." 42 U.S.C.
39
2000bb-l. The Act’s mandate applies to any "branch, department, agency, instrumentality, and
official (or other person acting under color of law) of the United States," as well as to any
"State, or . . . subdivision of a State." 42 U.S.C. 2000bb-2(l).9
Although the Church asserts repeatedly (e.g. Brief at 22-27) that its compliance with the
Commission’s EEO rule in its operation of the radio stations of which it is the licensee
substantially burdens its religious activities, it is impossible to reconcile those claims with the
holding in King’s Garden that a religious organization
confronts the FCC’s rules only because the sect has sought out the temporary
privilege of holding a broadcasting license. ... The FCC’s rules merely condi
tion King’s Garden’s ability to extend its activities by use of "a limited and
valuable part of the public domain." ... There are, concededly, constitutional
limits on the conditions which the FCC may impose. But the Constitution does
not obligate the FCC to relinquish its regulatory mandate so that religious sects
may merge their licensed franchises completely into their ecclesiastical structures.
498 F.2d at 60.
9 The Supreme Court, in City of Boeme v. P.F. Flores. 117 S.Ct. 2157 (1997), held the
RFRA unconstitutional as an exercise of Congress’ power under the Fourteenth Amendment.
The Church and amici contend that the RFRA’s applicability to the Federal Government has
survived the Supreme Court’s decision in that case. We think that proposition is far less clear
than the opposing parties. However, since the RFRA clearly is not applicable to the FCC’s EEO
rule as discussed above, the Court need not decide the more difficult question whether the RFRA
could be applied constitutionally in this context.
41
Religious Broadcasters have raised in comments in that proceeding "‘the same concerns the
Church has raised in this case’ and has asked the Commission to modify its EEO rule to permit
religious organizations to establish religious belief as a qualification for all station employees."
Commission Order. 12 FCC Red a t ____114 (JA___ ).
That the Church failed to present its argument on this point to the Commission in the
licensing proceeding in this case, simply reinforces that the proper procedure for re-examination
of an agency rule is in a rule making. See Edison Elec. Institute v. ICC. 469 F.2d 1221, 1230
(D.C. Cir. 1992). The Church’s largely unexplained reliance on Bechtel v. FCC. 10 F.3d 875
(D.C. Cir. 1993) (Brief at 38-39), does not support its position. That case stands for the
proposition that the Commission could not continue to apply a policy that the Court had
reviewed and found to be arbitrary and capricious. See 10 F.3d at 878. In Bechtel, the Court
explained that its ruling in an earlier phase of that litigation had held "that an agency relying on
a previously adopted policy statement rather than a rule must be ready to justify the policy ‘just
as if the policy statement had never been issued’, ... and explained that the Commission’s broad
discretion to choose between rulemaking and adjudication did not justify its applying an
undefended policy in adjudications simply on the basis of a hypothetical future rulemaking.’"
Icf at 877 (emphasis added). In the instant case, unlike the Bechtel litigation, a rule is involved,
and the rule currently is being examined in a pending rule making where parties have directly
commented on the issues that the Church has raised for the first time in its brief.
Under these circumstances, the Church’s argument is not properly before the Court and
should not be considered on review in this case.
42
CONCLUSION
For the foregoing reasons, the Commission’s Order should be affirmed.
Respectfully submined.
General Counsel .
Daniel M. Armstrong
Allan Sacks
Counsel
Federal Communications Commission
Washington, D.C. 20554
(202) 418-1740
October 23, 1997