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In Lutheran Church, the court focused on the Church's facial challenge to the   EEO rules based on the Equal Protection Clause. It did not address the Church's claims that the   Commission's EEO rules, as applied to licensees that are religious organizations, violated the Religious  S-  Freedom Restoration Act of 1993R yOJ-ԍ42 U.S.C.  2000bb1 ("RFRA").R and the Free Exercise Clause of the First Amendment by interfering with the Church's ability to prefer Lutherans in hiring.  S;- 3 12.44The court held that the portions of the Commission's regulations requiring licensees to   maintain an EEO program to recruit minorities were subject to the strict scrutiny applicable to racial  S-  classifications imposed by the federal government under Adarand Constructors, Inc. v. Pe9a.f  {O#- ]ԍ515 U.S. 200, 115 S. Ct. 2097 (1995) ("Adarand"). Those portions of the Commission's regulations   Jrequired broadcast licensees to: (1) disseminate the EEO program to job applicants and employees; (2) use minority   and womenspecific recruitment sources when general sources are not effective in generating minority applicants   although the court did not interpret this portion of the rules that narrowly; (3) evaluate the station's employment   profile and job turnover against the availability of minorities and women in its recruitment area; (4) offer promotions"&,l(l(2'"   to minorities and women in a nondiscriminatory fashion; and (5) analyze their efforts to recruit, hire, and promote minorities and women. 47 C.F.R.  73.2080(b), (c). The court" ,l(l(,,"   rejected the Commission's argument that its rules were not subject to strict scrutiny because they required   "only outreach in recruitment, not raceconscious hiring decisions. According to the court, the   zCommission's regulatory scheme, including its comparison of a station's employment profile with the   relevant labor force as part of its initial analysis of a station's EEO program, "pressure[s] stations to   maintain a work force that mirrors the racial breakdown of their 'metropolitan statistical area,'" and thus  S-  injects racial considerations into hiring decisions.N  {O-ԍLutheran Church at 352.N The court did not find that a station would be held   \in violation of the Commission's rules based solely on a statistical disparity between its employment   profile and the percentage of minorities in the local work force. However, it concluded that the   Nrequirement that stations evaluate the success of their EEO programs based on those statistics, in   conjunction with the Commission's use of those statistics at renewal time, induced licensees "to hire with   an eye toward meeting the numerical target," and thus resulted in individuals being granted a preference  S-because of their race.B {O!-ԍId. at 354.B  Si -  13.44In order to withstand strict scrutiny, the government must show that racial classifications serve  S6 -  a compelling governmental interest and are narrowly tailored to further that interest.6 D {O- ԍE.g., Adarand, 115 S. Ct. at 2117; City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989) ("Croson");  {O-Lutheran Church at 354. The Commission   Lhad asserted that its EEO regulations were designed solely to foster diverse programming content, which   .the court interpreted as meaning programming that "reflects minority viewpoints or appeals to minority  S -  jtastes."V  {O-ԍXLutheran Church at 354.(#V Although the court acknowledged that the Supreme Court had found the governmental interest  Sj-  /in diverse programming an "important" government interest in Metro Broadcasting, Inc. v. FCC,6&j2  {O<- Mԍ497 U.S. 547 (1990). In its Lutheran Church opinion, the D. C. Circuit criticized the Supreme Court for  {O-  =not explaining in Metro Broadcasting "why it was in the government's interest to encourage the notion that   minorities have racially based views," and expressed doubt "that the Constitution permits the government to take  {O-account of racially based differences, much less encourage them." Lutheran Church at 355.6 it   Lfound it "impossible to conclude that the government's interest [in diverse programming], no matter how  S-articulated, is a compelling one."m(  {O- ԍLutheran Church at 355. The court also distinguished the kind of diversity at stake in Metro Broadcasting,  {O -  Ywhich it termed "interstation diversity," from that at issue in Lutheran Church, which it referred to as intrastation  {OY!-  diversity." Id. It observed that pursuing a goal of fostering diversity among stations was "at least understandable,"  {O#"-but attempting to make "a single station all things to all people makes no sense." Id. at 35556.m  S-  14.44Further, the court held that, even assuming that the governmental interest in diversity is   0compelling, the Commission's EEO rules were not narrowly tailored to further that interest. The   Commission's EEO rules apply to all broadcast station employees, but the court noted that the"9,l(l(,,r"  S-  Commission had introduced no evidence "linking lowlevel employees to programming content."B {Oh-ԍId. at 356.B The   court thus concluded that insofar as the rules apply to all station employees, they "could not pass the  S-substantial relation prong of intermediate scrutiny, let alone the narrow tailoring prong of strict scrutiny.":Z {O-ԍId.:  S4- 15.44The court thus held the Commission's broadcast "EEO program requirements" unconstitutional   ]as applied to minorities. The court declined to evaluate the constitutionality of the EEO program  S-  requirements as applied to women, since the issue was not before it.G {OZ -ԍId. at 351, n.9.G The court also did not address the   Church's argument that the Commission's employment nondiscrimination requirement violated the Free   AExercise Clause of the First Amendment or the RFRA. Nor did it reach the Commission's  S5-nondiscrimination rule or invalidate Section 73.2080(a)*"5~ {OS- ԍSection 73.2080(a) of the Commission's Rules states: "General EEO policy: Equal employment opportunity   in employment shall be afforded by all licensees or permittees of commercially or noncommercially operated AM,   FM, TV, or international broadcast stations (as defined in this part) to all qualified persons, and no person shall be discriminated against in employment by such stations because of race, color, religion, national origin, or sex."* of the Commission's EEO rules, explaining:  RX[O]ur opinion has undermined the proposition that there is any link between broad  2employment regulation and the Commission's avowed interest in broadcast diversity. We  think, therefore, that the appropriate course is to remand to the FCC so it can determine  S6 -whether it has authority to promulgate an employment nondiscrimination rule.C6 h  {O>-ԍId. at 356. C    The court thus remanded the case for the Commission to determine whether it has the jurisdiction to retain  S -the antidiscrimination provision of Section 73.2080.F  {O7-ԍId. at 356357.F  S7- 16.44The Commission petitioned the court for rehearing en banc. On September 15, 1998, the D.C.  S-  \Circuit denied the petition.  {O1-ԍLutheran ChurchMissouri Synod v. FCC, No. 971116, D.C. Cir., September 15, 1998. In so doing, the court issued a supplemental decision elaborating on the  S-  Lutheran Church decision. The court noted that: "Because the FCC's regulations at issue here   indisputably pressure even if they do not directly require stations to make racebased hiring decisions,  Sm-  under the logic of Adarand, they too must be subjected to strict scrutiny."Jm {O+"-ԍId., slip op. at 7.J The court went on, however, to clarify that:  XThis does not mean that any regulation encouraging broad outreach to, as opposed to the  Bactual hiring of, a particular race would necessarily trigger strict scrutiny. Whether the  government can encourage or even require an outreach program specifically targeted  on minorities is, of course, a question we need not decide. As we concluded in our prior"<,l(l(,,"  opinion, the Commission's regulations go far beyond any nondiscriminatory outreach  program. The imposition of numerical norms based on proportional representation  which is the core element to what are often referred to as affirmative action, set aside, or  quota programs is the aspect of the Commission's rule that makes it impossible for us  nto apply any standard of review other than strict scrutiny. In other words, the regulations  here must be subjected to strict scrutiny because they encourage racial preferences in  hiring and as such treat people differently according to race. We of course do not claim,  Aas Judge Tatel suggests, that all race conscious measures adopted by the government must  Sh-be subjected to strict scrutiny.h {O- ԍId., slip op. at 89. Four judges voted to rehear the case, three of whom dissented in two separate opinions   from the decision not to rehear the case. Chief Judge Edwards, in an opinion with which Judge Wald concurred,   iwould have held that there was no constitutional issue because the regulations did not encourage or oblige anyone   Jto exercise hiring preferences but, at most, encouraged stations fairly to consider minority applications. Therefore,   xthe Chief Judge noted that, on remand, the Commission should consider amending the regulations to add a caveat    providing that nothing contained in the regulations requires an employer to grant preferential treatment based on race.   <Judge Silberman disagreed that such a caveat would be sufficient. Slip op. at 11. Judge Tatel, in an opinion with  {OJ-  which Judge Wald concurred, noted that Adarand does not require strict scrutiny of all raceconscious government measures:  Xa vast range of antidiscrimination laws, including Title VII, require public and private entities to  be conscious of race not only in outreach and recruitment, but also in hiring and promotion.  Surely such laws do not implicate strict scrutiny. What triggers strict scrutiny, then, is not mere raceconsciousness, but rather unequal treatment based on race.   {O-  Lutheran ChurchMissouri Synod v. FCC, No. 971116, (dissent opinions) D.C. Cir., September 15, 1998, dissent   slip op. at 10. Judge Tatel added that, in his view, the EEO regulations do not mandate hiring preferences, and  {O-  nothing in the record supports the assumption that the regulations even influence hiring decisions. Id., dissent slip op. at 12.   S- O17.44In this proceeding, we propose broadcast EEO program requirements and conforming changes to our cable EEO rules. We also propose to retain the antidiscrimination prong of the EEO rules.  Si - 3 III. DISCUSSION ă  S - A. Constitutional and Statutory Framework  S -1. Constitutional Requirements  S7- 118.44In this proceeding, we seek to adopt EEO outreach requirements that would be constitutional  S-  under the court's decision in Lutheran Church. p yO"-ԍThe court did not question the constitutionality of the nondiscrimination rule. As explained below, we believe that our revised EEO   Lprogram requirements, which would require licensees to inform women and members of minority groups   of vacancies at the station and encourage them to apply, but would not pressure broadcasters to adopt racial preferences in hiring or other employment decisions, would be constitutional.  S- 19.44While the Commission's equal employment regulations apply to women as well as members" ,l(l(,,"  S-  of racial and ethnic groups,Q! {Oh-ԍSee 47 C.F.R.  73.2080Q the D.C. Circuit struck them down in Lutheran Church as applied to   minorities under the strict scrutiny analysis applicable to racebased decisionmaking. Since a less  S-  jstringent "intermediate scrutiny" analysis applies to genderbased decisionmaking,"Z {O- ÍSee, e.g., U.S. v. Virginia, 518 U.S. 515 (1996); Ensley Branch, NAACP v. Seibels, 31 F.3d 1548, 157980  {O_-(11th Cir. 1994); Lamprecht v. FCC, 958 F.2d 382, 391 (D.C. Cir. 1992). we believe that any   Commission equal employment policy we may adopt that could withstand constitutional challenge as applied to racial minorities could also withstand constitutional challenge as applied to women.  S- 120.44In its decision denying the Commission's petition for rehearing, the court in Lutheran Church   stated that it had applied strict scrutiny because it viewed the Commission's regulations as pressuring   Lbroadcasters to adopt racial preferences in hiring. The court stated that its decision did not mean that all  S7-  race conscious measures adopted by the government must be subjected to strict scrutiny.#7 {O -ԍLutheran Church, No. 971116, slip op. at 8 (D.C. Cir. September 15, 1998) Thus, the   court's supplemental opinion suggests that the Commission can develop new outreach rules that would   be constitutional even if they specifically focus on minorities, as long as those rules do not pressure broadcasters to use racial preferences in hiring.  S8 - ~21.44The Supreme Court has not addressed the question whether raceconscious recruitment   /programs that do not result in racial preferences in hiring implicate equal protection concerns. While  S -  jAdarand contains broad statements suggesting that racial classifications by the government are subject to  S -  Lstrict scrutiny,$ H {O- ԍAdarand, 115 S. Ct. at 2113 ("all racial classifications, imposed by whatever federal, state, or local government actor, must be analyzed by a reviewing court under strict scrutiny"). the Court stated that equal protection concerns are triggered "whenever the government  Sm-  jtreats any person unequally because of his or her race."T%m {O-ԍId. at 2114 (emphasis added).T Thus, Adarand suggests that a person must be   ztreated unequally by the government on the basis of race to give rise to an injury cognizable under the   -Equal Protection Clause. Accordingly, we believe that a Commission recruitment policy that operates only   to enhance the pool of candidates for a job opening will not subject anyone to unequal treatment on the  S-  basis of race and will not raise equal protection concerns.&Z4  yOv- jԍRecruitment procedures that focus on minorities do take race into account. Numerous courts have, however,  {O>-  characterized such procedures as "race neutral." See cases cited in n.42, infra. However such procedures are characterized, the proposed rule does not raise constitutional concerns. We believe that a similar analysis would apply with respect to recruitment of women.  S - 22.44We note that these views are supported by precedent in the courts of appeal. For example,  S-  in Peightal v. Metropolitan Dade County,O'V  yO#-ԍ26 F.3d 1545 (11th Cir. 1994).O a fire department conducted "recruiting programs to provide  S-  information and to solicit applications from young minorities and women for firefighting positions."C( {O*&-ԍId. at 1557.C The   Ldepartment also held outreach programs and attended job fairs and career days at local colleges that were"q x(,l(l(,,"   designed to apprise minorities and women of career opportunities. All of these measures were   characterized approvingly by the Eleventh Circuit as "raceneutral" measures that the fire department had   employed in an attempt to attract minorities and women before initiating the raceconscious affirmative  Sg-  action program under review in that case. Similarly, in Duffy v. Wolle,z)g {O-ԍ123 F.3d 1026 (8th Cir. 1997), cert. denied, 118 S.Ct. 1839 (1998).z the Eighth Circuit held that an   employer's affirmative efforts to recruit minority and female applicants did not constitute discrimination,   reasoning that white males suffer no cognizable harm in being forced to compete against a larger pool of  S-qualified applicants.* Z {O- ԍId. at 103839. Accord, Monterey Mechanical Co. v. Wilson, 125 F.3d 702, 711 (9th Cir. 1997) ("non  discriminatory outreach program, requiring that advertisements for bids be distributed in such a manner as to assure   that all persons, including womenowned and minorityowned firms, have a fair opportunity to bid," are not subject  {O# -  to strict scrutiny as long as they impose no greater burdens on nonminority firms than minority firms); Ensley  {O -  + Branch, NAACP v. Seibels, 31 F.3d 1548, 1571 (11th Cir. 1994) (characterizing minority recruitment efforts as "race  ,neutral" means of increasing minority employment of the kind required prior to imposition of racial preferences to  {O -  remedy past discrimination); Billish v. City of Chicago, 962 F.2d 1269, 1290 (7th Cir. 1992), vacated on other  {OI-  grounds, 989 F.2d 890 (7th Cir.) (en banc), cert. denied, 510 U.S. 908 (1993); Coral Const. Co. v. King County,  {O-  941 F.2d 910, 923 (9th Cir. 1991), cert. denied, 502 U.S. 1033 (1992); Shuford v. Alabama, 897 F. Supp. 1535,   155254 (M.D. Ala. 1995) (even if recruitment measures specifically seek out minorities or women, they are not   subject to heightened scrutiny under the equal protection clause because they do not exclude anyone on the basis of  {Om-  irace; they only expand the pool of qualified applicants.) See also Raso v. Lago, 135 F.3d 11, 16 (1st Cir. 1998)   (strict scrutiny is applied to racial classifications by the government that are "preferentially favorable to one race or another for the distribution of benefits").  Si- 23.44These precedents suggest that, to comply with the Constitution, recruitment measures must   ]be inclusive; they must not be administered in such a way so as to exclude or deny information to  S-  qualified applicants on the basis of race or any other suspect classification.i+  {O-ԍSee Shuford v. Alabama, 897 F. Supp. at 15521554.i Further, they should impose  S-  no greater burdens on nonminority firms than minority firms.q, {O"-ԍSee Monterey Mechanical Co. v. Wilson, 125 F.3d at 71112.q The EEO program requirements proposed   herein are crafted as outreach programs that would avoid unequal treatment based on race or gender and   would not pressure broadcasters to adopt racial preferences in hiring. In addition, they would not provide   preferential information to minorities or impose greater burdens on nonminorities than minorities. Accordingly, we believe that they would be constitutional. We seek comment on these views.  S -2. Statutory Authority for EEO Program Requirements and AntiDiscrimination Rule  S8-a. Broadcasting.  S- }24.44As discussed above, the court, in Lutheran Church, specifically directed us to consider our   authority to promulgate an employment nondiscrimination rule. Further, while the court struck down the   broadcast EEO program requirements on constitutional grounds and did not hold that we lack statutory  S:-  kauthority to promulgate such rules, it questioned our reliance on our public interest mandate to foster   diversity of programming as a basis for the broadcast EEO rules. Accordingly, we examine here our   statutory authority to retain our antidiscrimination rule and to adopt new EEO outreach requirements for broadcasters. " D,,l(l(,,"Ԍ S- mԙ25.44We believe there is ample statutory authority for us to retain our EEO antidiscrimination rule  S-  and, consistent with the constitutional standards established in Lutheran Church, to promulgate new EEO   outreach requirements. First, as discussed below, we believe that Congress has ratified the Commission's   jauthority to adopt EEO rules for broadcasters. Second, we believe that we have authority to adopt rules   fostering equal employment in the broadcast industry in order to further the statutory goal of fostering   minority and female ownership in the provision of commercial spectrumbased services, reflected in   Section 309(j) of the Act. Finally, as previously recognized by the Supreme Court, we continue to believe   that equal employment of minorities and women furthers the public interest goal of diversity of   programming, both independently and by enhancing the prospects for minority and female ownership.  S6-  While the governmental interest in diversity of programming was held not "compelling" in Lutheran  S-  [Church under strict scrutiny analysis, we believe it nevertheless provides a reasonable basis for the rules   proposed below, which are limited to recruitment of minorities and women and could not reasonably be viewed as pressuring broadcasters to adopt racial preferences in hiring.  S9 -44i. Congressional Ratification Based on Section 334 and Other Provisions  S - 26.44The Commission has administered EEO program requirements and antidiscrimination rules  S -  for over 25 years.-  {O- ԍFor a history and review of the Commission's broadcast EEO rules and policies, see Report in MM Docket  {O-No. 9434, 9 FCC Rcd 6276, 628594 (1994) (Report). Over that time period, Congress has repeatedly expressed awareness of the rules and   @has not only acquiesced in them but has referred to them approvingly, thereby confirming the   Commission's view that it has statutory authority to promulgate them. Indeed, Congress codified the EEO   program and nondiscrimination requirements as applied to television licensees when it adopted Section   334 of the Communications Act of 1934, as amended, 47 U.S.C.  334. Section 334, added in 1992, provides that "the Commission shall not revise:"  X(1) the regulations concerning equal employment opportunity as in effect on September  1, 1992 (47 C.F.R. 73.2080) as such regulations apply to television broadcast station licensees and permittees; or   X(2) the forms used by such licensees and permittees to report pertinent employment data  S<-to the Commission..<$ yO- ?ԍ47 U.S.C.  334(a). This section was added as part of the Cable Television Consumer Protection and Competition Act of 1992, Pub. L. No. 192385, 106 Stat. 1460 ("1992 Cable Act").   S- a27.44The Conference Report indicates that this section "codifies the Commission's equal  S-  employment opportunity rules, 47 C.F.R. 73.2080" for television licensees and permittees.d/| yO -ԍH. R. Rep. No. 862, 102d Cong., 2d Sess. 97 (1992).d Thus, as   Kapplied to television licensees and permittees, the Commission not only has statutory authority to continue   jits EEO rules in effect, the statute requires it to do so. Of course, the statute can only be enforced to the   extent that it is constitutional. But we tentatively conclude the Commission has statutory authority to   =continue applying to television licensees the antidiscrimination requirement, and to adopt new outreach rules that do not pressure or encourage broadcasters to adopt racial preferences in hiring.  S>- 28.44Moreover, while Section 334 does not codify the Commission's EEO requirements for radio   \broadcast licensees, we believe Congress has ratified the Commission's authority to promulgate equal" /,l(l(,,U#"   employment rules for radio as well as television licensees. Since the Commission's statutory authority   =to regulate radio broadcast licensees is coterminous with its authority over television broadcast licensees   under Title III of the Act, we believe Section 334 recognizes the Commission's authority to promulgate  Sg-  equal employment regulations for all broadcasters under its broad public interest mandate.0g {O- ԍSee, e.g., Bob Jones University v. U.S., 461 U.S. 574, 599602 (1983) (Congressional acquiescence in IRS   denial of tax exempt status to racially discriminatory schools, both through congressional inaction and approving  {Oa-  v statements in committee reports, confirmed that IRS correctly interpreted statute); Herman & MacLean v. Huddleston,   J459 U.S. 375, 38486 (1983) (longstanding judicial construction of remedial provision of securities law was ratified  {O-  by congressional decision to leave provision intact when it adopted sweeping revision of the securities law); U.S. v.  {O-  Rutherford, 442 U.S. 544, 55354 (1979) (FDA interpretation of scope of its statutory authority as including drugs   used by terminally ill patients was entitled to substantial deference because "agency's interpretation involves issues   .of considerable public controversy, and Congress has not acted to correct any misperception of its statutory objectives," even though Congress modified the statute in other respects). Congress was   clearly aware of the equal employment opportunity requirements for radio broadcast licensees and has   never indicated that the Commission lacked authority to adopt them. Indeed, the House Commerce   ?Committee Report on the bill that proposed the provision that ultimately codified the cable EEO   requirements, explicitly confirmed the Commission's authority, stating that "[i]t is well established that  Sh-  the Commission has the authority to regulate employment practices in the communications industry."1h {O- >ԍH.R. Rep. No. 934, 98th Cong., 2d Sess. 8485 (1984).  See also H.R. Rep. No. 628, 102 Cong., 2d Sess. 111118.   Furthermore, Section 22(g) of the 1992 Cable Act required the Commission to report to Congress on "the   ?effectiveness of [the Commission's] procedures, regulations, policies, standards, and guidelines in   {promoting equality of employment opportunity and promotion opportunity, and particularly the   effectiveness of its procedures, regulations, policies, standards, and guidelines in promoting the   Lcongressional policy favoring increased employment opportunity for women and minorities in positions   of management authority." The Commission was required to include in that report "such legislative   .recommendations to improve equal employment opportunity in the broadcasting and cable industries as   it deems necessary." We do not believe that Congress would have directed the Commission to review the   effectiveness of its broadcast and cable EEO policies and regulations then in effect, and recommend   whether further legislative action was necessary, had Congress not believed that those policies and regulations were within the Commission's lawful authority.  S- 329.44Congressional ratification as a source of statutory authority, based on Section 334 and   congressional acquiescence in the Commission's longstanding EEO rules, is bolstered by several   congressional revisions of the Communications Act. Those revisions include the codification in 1984 of   zEEO rules applicable to cable operators and the strengthening of those rules in 1992, by, among other   things, adding multichannel video program distributors to the cable entities covered by those rules. In   =codifying EEO rules for cable entities, including multichannel video programming distributors, in Section   634 of the Act, Congress confirmed the importance of EEO rules for the electronic media generally.   Indeed, Congress explicitly acknowledged the existence of the Commission's broadcast and cable EEO   rules and proclaimed that vigorous enforcement of those rules was necessary. Section 22(a) of the 1992 Cable Act provides:  S- R   (1) despite the existence of regulations governing equal employment opportunity,  Sn- females and minorities are not employed in significant numbers in positions of  S;-management authority in the cable and broadcast television industries; "  1,l(l(,,"Ԍ  (2) increased numbers of females and minorities in positions of management authority  S- in the cable and broadcast television industries advances the Nation's policy favoring  S-diversity in the expression of views in the electronic media; and  3 (3) rigorous enforcement of equal employment opportunity rules and regulations is  S-required in order to effectively deter racial and gender discrimination.2"l {Oj- ԍ1992 Cable Act, Section 22(a) (emphasis added).  See also H.R. Rep. No. 934, 98th Cong., 2d Sess. 8485   X (1984) ("The Committee strongly believes that equal employment opportunity requirements are particularly important   <in the mass media area where employment is a critical means of assuring that program service will be responsive to a public consisting of a diverse array of population groups.")  S-   30.44The 1992 Act, which extended the cable EEO rules to include all multichannel video program   distributors, thus indicates congressional intent to impose EEO requirements on all electronic program   Mdistributors. We believe it is implausible that Congress would have intended to leave broadcast radio   =licensees, alone among the electronic media, free of EEO requirements. Rather, we believe that Congress   assumed that the Commission's regulations covered that base and that ample statutory authority for such  S -  Nregulations existed. The enactment of the minority preferences in Sections 309(i) and (j)p3  {O-ԍ47 U.S.C.  309(i), (j). See also 47 U.S.C.  151.p further   indicates continuing congressional approval of policies favoring equal opportunity in the communications   industry generally. Thus, Congress has not merely acquiesced in the Commission's initiatives to assure   =equal opportunity for minorities and women, it has amended the Act to strengthen and expand the reach   of those policies. Accordingly, we believe Section 334 and other indications of congressional approval  S -  and ratification supply one basis for the statutory authority that the D.C. Circuit questioned in Lutheran  Sl-Church, particularly for television, but also for radio.Q4lD {OP-ԍSee Lutheran Church at 24.Q  S- |31.44We also believe that the Congressional enactments and pronouncements discussed above make  S-  [it clear that the Commission has authority to adopt and enforce both rules prohibiting discrimination and   {rules requiring broadcast and cable entities to conduct outreach in recruitment. In the seminal case  So-  zNAACP v. FPC,R5o yO-ԍX425 U.S. 662, 670 (1976).(#R the Supreme Court could find nothing in the Federal Power Act or Federal Gas Act   indicating that "the elimination of employment discrimination was one of the purposes that Congress had  S -  in mind when it enacted [that] legislation,"J6 f  {O-ԍXId. at 670.(#J and thus held that the Federal Power Commission's public   yinterest mandate did not include prohibiting discrimination. In contrast, there is abundant evidence in the  S-  lCommunications Act and its legislative history that the FCC's mandate does include a directive to   eradicate discrimination by Commission broadcast licensees and cable entities. Indeed, with respect to   lbroadcast television and cable entities, including multichannel video programming distributors, the  S -Commission is not only authorized to ban discrimination, it is required by statute to do so.[7   {O$-ԍXSee 47 U.S.C.  334, 554.(#[  S- 32.44Similarly, Congress has made it clear that the Commission has authority and is required in   the case of broadcast television and cable entities to impose outreachtype recruitment requirements on"t 7,l(l(,,["   broadcast and cable entities. Outreach requirements have been a prominent part of the Commission's EEO   rules since 1969, and were a central feature of the EEO rules codified by Congress for cable in 1984 and  S-broadcast television and multichannel video programming distributors in 1992.8 {O-ԍXSee 47 U.S.C. 334(a)(1) and 47 C.F.R. 73.2080(b),(c); 47 U.S.C.  554(c), (d).(#Ƙ  S4- m 33.44Furthermore, we believe that Congress has endorsed recruitment requirements for two distinct   purposes: fostering diverse programming by increasing the number of women and minorities in positions  S-  kthat have an impact on programming decisions, and deterring racial, ethnic, and gender discrimination.   \Both are set forth as express purposes of the cable EEO rule amendments enacted in 1992. As noted   above, Congress stated that EEO rules both "advance[] the Nation's policy favoring diversity in the   expression of views in the electronic media" and are "required in order to effectively deter racial and  S-  [gender discrimination."X9Z yO -ԍX1992 Cable Act, Section 22(a). (#X Congress plainly thought it important to increase the number of minorities and   =women in upperlevel positions in order to further the national policy favoring the expression of diverse  S -views and perspectives in the electronic media.:  {O'- kԍXSee 1992 Cable Act, Section 22(a)(2). See also NAACP v. FPC, 425 U.S. at 670 n.7; Section III.A.2.a.iii  {O-infra.(#  S7 -   !34.  It is also clear from the cable EEO rules codified in Section 634 of the Act that Congress  S -  intended the Commission to enforce recruitment and other EEO requirements with respect to all job   categories, including such categories as "semiskilled operatives" and "unskilled laborers," in order to   \effectively deter hiring discrimination. Section 634(d)(1) required the Commission to amend its cable   EEO rules, including its recruitment rules, to "promote equality of employment opportunities for females   and minorities in each of the job categories itemized" in section 634(d)(3). We believe that it did so   /because it concluded that broad EEO rules are necessary to combat discrimination, as reflected in the   Congressional findings set forth in the 1992 Cable Act. The new recruitment requirements that we  S-propose today are intended to advance both of these Congressional purposes.];F {O-ԍXSee Section III.B infra.(#]  S:- A"35.44We note that Section 334 prohibits the Commission from revising its EEO regulations and   forms as applied to television stations. We believe that this provision does not prevent us from   establishing new EEO outreach program provisions and forms for television licensees to the extent  S-  necessary to make those rules constitutional under Lutheran Church. A contrary interpretation of the   statute would frustrate the clear Congressional intent that television licensees be subject to EEO   requirements, since it would prevent us from establishing new EEO regulations for television stations that  S -address the concerns raised by the court in Lutheran Church.  S-44ii. Section 309(j)  S>- "#36.44Pursuant to Section 309(j) of the Communications Act, as amended in 1997, the Commission   must award all commercial broadcast licenses for which mutually exclusive applications are filed, except  S-  those in three exempt categories,< yOP&- zԍPublic safety, noncommercial broadcast, and initial digital television service licenses are exempt from the competitive bidding requirement. 47 U.S.C.  309(j)(2). by competitive bidding.="0  yO- ԍ47 U.S.C.  309(j), as amended by Balanced Budget Act of 1997, Pub. L. No. 10533, 111 Stat. 251 (1997).   The Commission also has discretion to use competitive bidding procedures for certain broadcast applications. The  {O -  Commission has implemented this provision. First Report and Order in MM Docket No. 97234, GC Docket No. 9252, GN Docket No. 90264, FCC 98194, released August 18, 1998. In implementing the competitive bidding"=,l(l(,," requirements the Commission must:  Xpromot[e] economic opportunity and competition and ensur[e] that new and innovative  technologies are readily accessible to the American people by avoiding excessive  Dconcentration of licenses and by disseminating licenses among a wide variety of  applicants, including small businesses, rural telephone companies, and businesses owned  S-by members of minority groups and women . . . .K> yO -ԍ47 U.S.C.  309(j)(3). K    Further, in crafting competitive bidding regulations, the Commission must promote "economic opportunity   for a wide variety of applicants, including small businesses, rural telephone companies, and businesses   ?owned by members of minority groups and women," and ensure that those entities "are given the   jopportunity to participate in the provision of spectrumbased services, and, for such purposes, consider  S -  !the use of tax certificates, bidding preferences, and other procedures . . . ."K? B yO~-ԍ 47 U.S.C.  309(j)(4).K The reference to tax   certificates, a preferential tax treatment available upon the sale of broadcast stations and cable systems to   minorities, suggests that Congress did not intend to limit the Commission to measures directly associated with the bidding process.  S - $37.44Thus, Section 309(j) establishes a congressional policy favoring the dissemination of licenses  Sj-  among a wide variety of applicants, including members of minority groups and women, as part of a broad  S7-  jpolicy of fostering economic opportunity.@7 {O-  ԍSee also 47 U.S.C.  257 (requiring the Commission to conduct a rule making proceeding to identify and   eliminate "market entry barriers for entrepreneurs and other small businesses in the provision and ownership of   telecommunications services and information services, or in the provision of parts or services to providers of   telecommunications services and information services" and directing the Commission to "promote the policies and purposes of this Act favoring diversity of media voices" in carrying out its Section 257 responsibilities.)  We believe that Section 309(j) provides statutory authority   to implement new EEO rules because the statutory goal of fostering minority and female ownership in the   provision of commercial spectrumbased services would be furthered by nondiscrimination and   recruitment requirements, which are designed to foster equal employment of minorities and women in the   broadcast industry. Work experience in the broadcasting industry permits minorities and women to obtain   the skills needed to acquire and run a broadcast station, may help them in becoming aware of ownership   opportunities, and may facilitate obtaining capital, as financing sources are generally more willing to work with borrowers that have a track record in the business they seek to own and operate.  Sl- %38.44We have previously concluded that there is a link between the policies furthered by our EEO  S9-  rules and the promotion of ownership by minorities and women.A^ 9  {O]%- ԍSee, e.g., Report in MM Docket No. 9434, 9 FCC Rcd 6276, 6319 (1994) ( noting that "management  {O'&-  positions ... are often stepping stones to ownership."); Regulatory Treatment of Mobile Services, Third Report and  {O&-  Order, 9 FCC Rcd 7988, 8097 (1994) ("EEO rules for commercial mobile radio service (CMRS) providers are"&@,l(l('"   -appropriate and necessary to achieve the statutory goal of increased ownership opportunities for minorities and   women in spectrumbased services. By having EEO rules that apply to all CMRS providers, we will provide   increased communications experience for minorities and women. This experience will, in turn, enable them more easily to become owners of communications enterprises.") Congress similarly appears to have"9A,l(l(,,"   concluded that such a link exists. In codifying the cable EEO requirements in 1984, the House Commerce   [Committee asserted that "a strong EEO policy is necessary to assure that there are sufficient numbers of   minorities and women with professional and management level experience within the cable industry, so   that there are significant numbers of minorities and women with the background and training to take  S4-  advantage of existing and future cable system ownership opportunities."iB4 yO -ԍH.R. Rep. No. 934, 98th Cong., 2d Sess. at 8485 (1984).i We urge commenters to submit   evidence establishing the nexus between employment opportunities for minorities and women and ownership opportunities.  Sh-44iii. Public Interest Mandate to Promote Programming Diversity  S- &39.44The Commission has broad authority under the Communications Act to regulate and license   .broadcasters as the public convenience, interest, or necessity require. This authority is based on several   provisions of the Act. For example: (1) Section 301 of the Act provides that no person can transmit radio  Si -  zsignals in the U.S. except under a license granted by the Commission;DCi @ yOI-ԍ47 U.S.C.  301.D (2) Section 303 authorizes the   Commission to license and regulate use of the radio spectrum "as public convenience, interest, or necessity   requires," to "generally encourage the larger and more effective use of radio in the public interest," and  S -  to enact regulations to carry out the provisions of the Act; D$  yO@- ԍ47 U.S.C.  303(f), (g), and (r). The Supreme Court has held that Section 303(r) confers authority on the   Commission to issue regulations codifying its view of the public interest licensing standard, so long as that view is  {O-  based on consideration of permissible factors and is otherwise reasonable. FCC v. National Citizens Committee for  {O-Broadcasting, 436 U.S. 775, 793 (1978).  (3) Section 307 directs the Commission to  S -  grant and renew station licenses "if public convenience, interest, or necessity will be served thereby;"LE  yO-ԍ47 U.S.C.  307(a), (b).L   and (4) Section 309 directs the Commission to determine whether the "public interest, convenience, and   {necessity will be served" by the grant of applications for licenses, license modifications, or license  S-renewals.FL  yO- ԍ47 U.S.C.  309(a). Section 310(d) imposes the same standard on the grant of assignment and transfer  {O-  applications. See 47 U.S.C.  310(d). The 1996 Act modified the procedures for processing broadcast renewal   applications and refined the standard to be applied by the Commission in determining whether to grant renewal   applications. Prior to enactment of the 1996 Act, the grant of renewal applications was controlled by the general   "public interest, convenience, and necessity" standard set forth in Section 309(a). As amended in 1996, the   JCommunications Act directs the Commission to grant a broadcast renewal application if it finds, with respect to the   station at issue, that the licensee has served the public interest, convenience, and necessity; the licensee has not   committed any serious violations of the Act or the FCC's rules; and the licensee has not committed a series of   xviolations of the Act or rules that constitute a pattern of abuse. 47 U.S.C.  309(k). The 1996 amendment thus   makes it clear that the public interest standard is broader in scope than compliance with specific provisions of the Communications Act or rules. "F,l(l(,,"Ԍ S- '40.44Moreover, Congress amended Section 1 of the Communications Act in 1996 to make it clear   [that the Commission's mandate is to regulate interstate and foreign communications services so that they  S-  are "available, so far as possible, to all people of the United States, without discrimination on the basis  Sh-  of race, color, religion, national origin, or sex..."Gh yO-ԍ47 U.S.C.  151, as amended (1997) (emphasis added) (italicized clause added by the 1996 Act). We believe that this recent amendment, which applies  S6-  to all entities subject to the Communications Act,aH6X yO.-ԍH.R. Rep. 104458, 104th Cong., 2d Sess. at 143.a amplifies the Commission's general public interest   mandate to ensure that broadcasting and other programming services serve the interests and needs of all   sectors of the community, and indicates more specifically that such services shall be provided to all Americans without discrimination on the basis of race or any other suspect classification.  S7- `(41.44The Commission believes that a broadcaster can more effectively fulfill the needs of its  S-  community, i.e., serve the public interest, when it maintains a program that provides equal employment   opportunity to all applicants and employees regardless of race, ethnic, origin, color, or religion. Such a   ^program furthers one of the Commission's main objectives, to promote diverse programming  [programming that reflects the interests of minorities and women in the local community, as well as those  S9 -  of the community at large. As the Commission stated in Streamlining, we do not assume that minority   Mand female employment will always result in minority and femaleoriented programming. Nor do we   believe that all minorities or all women share the same viewpoints. Nonetheless, we believe that, as more   yminorities and women are employed in the broadcast industry, it is more likely that varying perspectives  Sn-will be aired and that programming will be oriented to serve more diverse interests and needs.]In {O-ԍStreamlining, 11 FCC Rcd at 51555156.]  S- )42.44The Supreme Court has recognized that the FCC has statutory authority to regulate the   employment practices of its licensees as a way of fostering diversity of viewpoints in programming. Such   regulation, the Court stated, "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 tastes  S<-  and viewpoints of minority groups."4J$<z {OV- ԍNAACP v. FPC, 425 U.S. 662, 670 n.7 (1976) (citing Office of Communication of United Church of Christ  {O -  v. FCC, 359 F.2d 994 (D.C. Cir. 1966). See also National Broadcasting Co. v. United States, 319 U.S. 190 (1943)   (FCC has authority under its public interest mandate to regulate anticompetitive practices of broadcast networks that prevented networks or licensees from making the fullest use of radio in the public interest).4 In addition, in Metro Broadcasting, Inc. v. FCC,EK<f  yOB-ԍ497 U.S. 547 (1990).E the Supreme   Court held that two minority ownership policies the award of an "enhancement" for minority ownership   in comparative proceedings for new broadcast licenses and the minority "distress sale" policy were   substantially related to the important governmental objective of "enhancing broadcast diversity," and thus  Sq-  /survived an intermediate level of equal protection scrutiny. Although the Adarand decision reversed  S?-  Metro Broadcasting to the extent that Metro Broadcasting held that federal racial classifications are subject   to a less rigorous standard of scrutiny than state racial classifications, it did not undermine the Court's   {recognition that the Commission's statutory mandate includes fostering a diversity of views in the" K,l(l(,,{"  S-broadcast service.L yOh- ԍAccording to the Court: "Safeguarding the public's right to receive a diversity of views and information   over the airwaves is therefore an integral component of the FCC's mission. We have observed that "the 'public  {O-  winterest' standard necessarily invites reference to First Amendment principles." Metro Broadcasting at 567, quoting  {O-  FCC v. National Citizens Committee for Broadcasting, 436 U.S. 775, 795 (1978) and Columbia Broadcasting System,  {O-Inc. v. Democratic National Committee, 412 U.S. 94, 122 (1973).   S- _*43.44Thus, it is well established under NAACP v. FPC, Metro Broadcasting and Supreme Court  Sh-  decisions that preceded them,Mh~ {O - ԍSee, e.g., FCC v. National Citizens Committee for Broadcasting, 436 U.S. 775, 795800 (1978); Red Lion  {OP -Broadcasting Co. v. FCC, 395 U.S. 367 (1969). that fostering diversity of viewpoints is a goal encompassed by the  S5-  Commission's public interest mandate.!NB5 {O - kԍSee also Community Television of Southern California v. Gottfried, 459 U.S. 498 (1983), which held that   the FCC did not abuse its discretion when it declined to impose a greater obligation to provide special programming   for the hearing impaired on a noncommercial licensee than a commercial licensee, even though the Rehabilitation   Act of 1973 applies to the former but not the latter. The Court stated that the FCC cannot permit licensees to ignore   the needs of particular groups within the viewing public, but held that the FCC's duty to enforce this obligation   derives from the Communications Act, not other federal statutes. Thus, the Supreme Court acknowledged that the   Commission's public interest mandate permits and perhaps requires it to determine whether its licensees are providing diverse programming targeted at all sectors of its community. ! Moreover, the minority ownership policies at issue in Metro  S-  jBroadcasting withstood intermediate scrutiny because the Court found they were "substantially related"  S-  yto the statutory goal of promoting diversity of information and viewpoints on the air waves.YOZ {OU- ԍ497 U.S. at 569600. Cf. FCC v. National Citizens Committee for Broadcasting, 436 U.S. at 793802   (recognizing nexus between diversity of ownership generally and diversity of viewpoints and upholding FCC's broad authority to foster diversity of ownership).Y Thus, the   Court affirmed the FCC's judgment that there was a nexus between rules fostering minority ownership  Sk-  of broadcast stations and the statutory goal of fostering diversity of viewpoints. Further, in Bilingual  S9-  NBicultural Coalition on Mass Media, Inc. v. FCC,YP9 yO-ԍ595 F.2d 621 (D.C. Cir. 1978) (en banc).Y the D.C. Circuit recognized the Commission's   Lauthority to enforce both "affirmative action" and antidiscrimination rules in the license renewal context   to advance its public interest mandate to foster diverse programming. The court held that the Commission   jhad abused its discretion by unconditionally renewing a broadcast license where a substantial question of  Sn -fact had been raised regarding whether the licensee had engaged in employment discrimination.MQ\n  {O- ԍId. at 628, 63335. See also National Organization for Women, New York Chapter v. FCC, 555 F.2d 1002,  {On -  Y10171019 (D.C. Cir. 1977); Black Broadcasting Coalition of Richmond v. FCC, 556 F.2d 59 (D.C. Cir. 1977) (per curiam).M  S - +44.44In Lutheran Church, the court concluded that the Commission's broadcast EEO program   |requirements were not narrowly tailored to advance the stated interest in diversity because the   requirements applied to lowlevel positions that lack influence over programming. However, although we   request comment on this view below, it is our belief that program content is not determined solely by the   individuals at the station with authority to select programming, but may also be influenced by interaction   between these individuals and other station employees, which exposes the former to views and   perspectives of the latter. Moreover, we believe that lowlevel positions provide a way for individuals"Q,l(l(,,"   zwith no communications experience, including minorities and women, to enter the broadcast and cable   industries, which, in turn, could lead to higherlevel positions of greater responsibility that could affect   program decisionmaking and/or provide the experience desired by financial institutions in prospective loan applicants for ownership of entities in the broadcast and cable industries.  S- ,45.44Accordingly, we invite comment as to whether there is a nexus between minority and female   employment and diverse programming as well as how employees in various positions exert influence on   programming decisions. We seek evidence, particularly empirical evidence, to support commenters'   assertions with respect to this issue. Moreover, we seek comment and evidence on whether employment   of minorities and women in some or all positions at a broadcast station furthers the goal of diversity of   programming indirectly by enhancing the prospects for minority and female ownership. As discussed   above, Section 309(j) of the Communications Act, as applied to broadcasters in 1997, establishes minority   and female ownership of broadcast stations as an explicit statutory policy. A nexus between equal   employment in the broadcast industry and diversity of ownership would support the adoption of EEO regulations.  S -b. Cable Entities, Including Multichannel Video Programming Distributors.  Sj- Q-46.44The court's decision in Lutheran Church did not reach our EEO rules for cable entities,  S8-  including multichannel video programming distributors.WR8 {O-ԍ47 C.F.R.  76.71 et seq.W It is our belief that ample statutory authority   exists for the continued enforcement of our cable EEO rules under Section 634 of the Communications  S-  NAct.DSZ yO-ԍ47 U.S.C.  554.D Indeed, that provision requires us to enforce EEO rules against cable entities. Because the  S-  MLutheran Church decision did not apply to cable, it could be argued that we do not have authority to   modify our rules to the extent that they reflect statutory requirements. However, we believe that such   modification would be prudent in this situation where certain provisions in the cable EEO rules are similar  S-  to provisions in the broadcast EEO Rule found by the D.C. Circuit Court in Lutheran Church to be   {unconstitutional under the strict scrutiny standard. We believe our actions taken in this regard are   consistent with the congressional intent reflected in Section 634(d)(4) that the Commission "amend its   rules from time to time to the extent necessary to carry out the provisions of this section...after notice and  S<-  opportunity for comment."^TX< yO- ԍ 47 U.S.C.  554(d)(4) states in full: The Commission may amend such rules from time to time to the   extent necessary to carry out the provisions of this section. Any such amendment shall be made after notice and  yOV-opportunity for comment. ^ We believe Section 634 is appropriately read as giving us authority to   modify our cable rules to the extent necessary to avoid constitutional problems. In addition, we note that   Section 634(d)(2) of the Communications Act indicates that the Commission shall specify the terms under   which a cable entity shall, "to the extent possible" comply with certain requirements in the Act.   Therefore, we believe that the Commission has authority to eliminate the provisions of the cable EEO   Lrules that were based on this part of the Act and are similar to those found unconstitutional by the court   because it is not "possible" for the Commission to impose a requirement that a court has found unconstitutional.  Sq-c. Annual Employment Reports  S - .47.44On September 30, 1998, the Commission issued a Memorandum Opinion and Order"  T,l(l(,,U#"   ("MO&O") suspending the requirement for television and radio broadcast licensees and permittees to file   Form 395B until further notice while it considers adoption of new EEO rules that address the concerns  S-  of the court in Lutheran Church and makes any appropriate changes to its data collection procedures.\U yO-ԍFCC 98250 (released: September 30, 1998).\  Sh-  We tentatively conclude that the Lutheran Church decision does not undermine our authority to require   broadcasters and cable entities to submit minority and female employment information to enable us to monitor industry employment trends.  S- _/48.44In 1970, the Commission adopted a rule requiring each licensee or permittee of a broadcast  Sj-  station with five or more fulltime employees to file an annual statistical profile report (FCC Form 395).VjX {Ob - @ԍSee Petition for Rulemaking To Require Broadcast Licensees to Show Nondiscrimination in Their  {O, -Employment Practices, 23 FCC 2d 430 (1970) ("Report and Order").   NThe Commission indicated that these data would be useful, among other things, to show industry  S-  employment patterns and to raise appropriate questions as to the causes of such patterns.ZW {OX-ԍReport and Order, 23 FCC 2d at 431.Z Similar  S-reporting requirements were extended to cable system operators in 1972PX\F {O- MԍSee In re Amendment of the Commission's Rules to Require Operators of Community Antenna Television  {O-  Systems and Community Antenna Relay Station Licensees to Show Nondiscrimination in Their Employment Practices, 34 FCC 2d 186 (1972).P and to MVPDs in 1993.+Yj  {O- ԍSee Implementation of Section 22 of the Cable Television Consumer Protection and Competition Act of 1992,  {O-Equal Employment Opportunities, 8 FCC Rcd 5389 (1993) (petitions for reconsideration pending).+  Sk - 049.44Since adoption of these reporting requirements, the Commission has used these data for the  S8 -  preparation of the broadcast and cable trend reports. The court in Lutheran Church did not conclude that   the Commission lacks authority to collect statistical employment data to analyze industry trends, or to   kprepare annual trend reports. Indeed, the Commission has broad authority to collect information and  S -  prepare reports. See, e.g., 47 U.S.C.  154(k) (annual report to Congress); 308(b); 403. Also, the  Sn-  Commission is required by statute to collect employment data for the television and cable industries. See   47 U.S.C.  334(a)(2) and 554(d)(3)(A). We continue to believe that the data derived from these reports   serve as a useful indicator of industry trends. Knowledge of these trends enables us to monitor the   \effectiveness of, and need for, our EEO rules generally, and to make appropriate recommendations to   Congress for legislative change. We emphasize, however, that this information will not be used for  Sp-  screening or assessing compliance with EEO outreach requirements, which the court found in Lutheran  S>-  yChurch impermissibly pressures broadcasters to adopt racial preferences in hiring. We seek comment on these views and tentative conclusions.  S- B. Broadcast and Cable EEO Proposals  S@- 150.44We seek comment on the following issues and proposals regarding changes to the   Commission's cable EEO rules and the adoption of a new broadcasting EEO Rule and also invite commenters to submit their own suggestions or proposals.  St- 251.44Although the Lutheran Church decision did not directly affect cable entities, the Commission's  SB-  cable EEO rules contain some of the same provisions that the court invalidated in Lutheran Church;"B Y,l(l(,,"   itherefore, to avoid possible constitutional problems, we propose new EEO provisions for both broadcasters  S-  and cable entities, including multichannel video programming distributors.]Z {O5-ԍSee 47 C.F.R.  76.71 et seq.] For the reasons discussed   above, the Commission believes that Section 634 of the Act does not preclude us from making rule   ymodifications necessary to ensure compliance with constitutional requirements. The Commission's cable   =EEO regulations consist of 47 C.F.R.  76.71 (scope of EEO application), 76.73 (general EEO policy),   {76.75 (EEO program requirements), 76.77 (EEO reporting requirements), and 76.79 (EEO records   available for public inspection). Our cable proposal as set forth below amends only certain provisions of   Section 76.75 to ensure that our EEO program requirements for cable entities under Section 634 of the   Act are constitutional. Specifically, the cable proposal amends only paragraphs (b), (c), and (f) of Section  S5-76.75, which concern recruitment, recordkeeping and selfassessment. See Appendix B.  S- 352.44Our proposed cable and broadcasting EEO rules address what the court in Lutheran Church   ycited as constitutional infirmities of the current broadcast EEO Rule. The court determined that the EEO   Rule was subject to strict scrutiny because it pressured "stations to grant some degree of preference to   minorities in hiring" and "to maintain a workforce that mirrors the racial breakdown of their 'metropolitan  S -  Lstatistical area'."S[ Z {O-ԍLutheran Church at 35152. S Accordingly, our proposed EEO rules as set forth in Appendixes A and B emphasize   jrecruitment outreach and make clear that, while they have a continued obligation to refrain from unlawful   .discrimination, broadcasting and cable entities are not required in any form or manner to hire or maintain   ja staff that reflects the racial or other composition of the community. Specifically, the new rules remove   {all requirements that broadcast licensees and cable operators compare their employment profile or   employee turnover with the local labor force. In addition, the Commission will no longer compare   individual broadcast licensees' or cable entities' employment profiles with the local labor force, even as a screening device.  S:- "453.44Some licensees have complained that the EEO Rule is too vague to be clearly understood, too   complex in its requirements, and offers little guidance as to what constitutes an adequate EEO program.   jWe seek to eliminate these perceived problems. For example, we propose to clearly describe in our rules what records of EEO efforts must be kept and to detail how an entity should analyze its EEO program.  S;- C554.44We propose to retain the cable and broadcasting rules' general EEO policy/program   requirements, as outlined in 47 C.F.R.  76.73(b) and 73.2080 (b), respectively. These require entities   to: define the responsibility of management to ensure compliance with their policy of equal opportunity,   and establish a procedure to review and control managerial and supervisory performance; inform   ]employees of their EEO program and enlist their cooperation; communicate their EEO policy and   employment needs to sources of qualified applicants without regard to race, color, religion, national origin,   /or sex, and solicit their recruitment assistance on a continuing basis; conduct a continuing program to   exclude all unlawful forms of prejudice or discrimination based upon race, color, religion, national origin,   or sex from personnel policies and working conditions; and conduct a continuing review of job structure   and employment practices and adopt positive recruitment, job design, and other measures to ensure   equality of opportunity to participate fully in all organizational units, occupations, and levels of responsibility.   S!- #655.44We also propose to retain most of the cable and broadcasting rules' specific EEO program   .requirements, such as requiring an entity to: disseminate its equal employment opportunity program to   job applicants and employees; review seniority practices to ensure that such practices are non">#[,l(l(,,&"ԫ  discriminatory; examine rates of pay and fringe benefits for employees and eliminate any inequities based   upon race or sex discrimination; offer promotions of qualified minorities and women in a   nondiscriminatory fashion to positions of greater responsibility; cooperate with any labor union in the   development of programs to assure qualified minority persons or women of equal opportunity for   employment; include a nondiscrimination clause in union agreements; and avoid the use of selection techniques or tests that have the effect of discriminating against qualified minorities or women.  S- 756.44Our proposed rules also retain the Commission's prohibition against employment   .discrimination. With respect to broadcasters, we propose modifying the antidiscrimination prohibition  S5-  so that religious broadcasters may establish religious belief or affiliation as a bona fide occupational  S-  qualification for their radio station employees. This would codify our decision in Order and Policy  S-  Statement for radio licensees and permittees. However, due to limitations imposed by Section 334, we   kwill continue to allow television licensees and permittees to establish religious belief or affiliation as a  Sl -  [bona fide occupational qualification under our current policy rather than through a rule.c\l  {O -ԍSee discussion in paras. 2627, supra.c See Order and  S: -Policy Statement at 6323.  S - 857.44Our proposal also stipulates that, in addition to continuing our prior policy of reviewing   broadcast stations' EEO programs at renewal time, we could also review programs at any time on a   jrandom basis through audits. Cable entities are already subject to random audits, and we would continue to review cable EEO programs every year as part of the annual certification process.  S- O958.44We propose to modify the Rule's requirement that we conduct midterm reviews of television   Lstations' employment practices. Section 334(b) of the Communications Act requires the Commission to   jconduct midterm reviews of such entities. This review, in accordance with the legislative history of this  S=-  section of the Act,]=Z {O7- ԍSee House Committee on Energy and Commerce, H.R. Rep. No. 102862, 102d Cong. 2d Sess. (1992), reprinted at Cong. Rec. H8308, H 83338334 (daily ed. September 14, 1992). consisted solely of comparing a station's employment profile with the relevant labor  S -  force.U^  {O^-ԍSee 47 C.F.R.  73.2080(d).U As this method of review was deemed impermissible by the court in the context of our broadcast  S-  NEEO outreach rules, we believe we must modify this section of our EEO rule. Therefore, like our   ]assessment of a licensee's EEO program at renewal time, the midterm review will now focus on a   Ltelevision station's efforts to comply with the proposed EEO requirements without considering how the composition of its employment profile compares with the composition of the local labor force.  S- :59.   Antidiscrimination. Our proposed rules retain the Commission's prohibition against   employment discrimination. Consistent with our longstanding policy, individual complaints of   employment discrimination against broadcast licensees and cable entities would be resolved in the first   instance by the Equal Employment Opportunity Commission ("EEOC") or other government agencies  S -  /and/or courts established to enforce nondiscrimination laws._ F {O#- ԍSee Memorandum of Understanding Between the Federal Communications Commission and the Equal  {O$-Employment Opportunity Commission, 51 Fed. Reg. 21798 (1986) ("MOU"). The policy set forth in the MOU was   developed primarily because Congress intended the EEOC to be principally responsible for the resolution   of individual employment discrimination disputes and efforts on our part to separately resolve such   disputes would result in unnecessary duplication. Thus, we would continue to forward individual"t_,l(l(,,!"   discrimination complaints received at the Commission to the EEOC for processing. We would also   ycontinue to take cognizance of any final determinations of employment discrimination. Nevertheless, we   would retain the discretion to consider allegations of discrimination prior to a final determination where   the facts so warrant. We would also continue to examine any allegations of patterns of discriminatory behavior.  S- ;60.44We invite comment on this proposal and whether our current practice should be changed in   {any way. For example, should we require that the Commission be contemporaneously notified of  Sh-  _discrimination complaints filed with the EEOC? In Streamlining, the Minority Media and   Telecommunications Council (MMTC) and 21 other organizations ("Joint Commenters") urged the   yCommission to consider all evidence which might be probative of discrimination or other EEO violations.   >They suggested that this type of evidence could include, among other things: evidence of a licensee's   jmisconduct at other facilities, including other commonly owned stations and headquarters; evidence from   >individual allegations of discrimination in exceptional cases; evidence from nonresponsive answers or   omissions on Form 396, in pleadings or in responses to Commission inquiries; evidence of failure to   .maintain records of EEO efforts; and evidence derived from logical inferences of potential discrimination  S -  drawn from a licensee's irrational explanations to the Commission for EEO nonperformance, e.g., claims   ythat minorities prefer not to work in a particular format or that minorities and women prefer occupations  Sl-  outside of broadcasting.`l {O-ԍComments filed by Joint Commenters in response to Streamlining at 22082. We request comment on whether we should consider any of these types of   evidence to be probative of discrimination and, if so, what specific pieces of evidence in each category  S-should lead us to this determination.   S- <61.44Recruitment. Effective recruitment for job vacancies is important to ensure that all qualified   applicants, whether minority or nonminority, male or female, are notified of, and have an opportunity   to compete on a level playing field for, job openings. Historically, women and minorities have had   Mdifficulty in finding out about, or taking advantage of, opportunities in the communications industry.   0Therefore, we believe that active recruitment efforts are especially essential to afford women and   minorities the opportunity to learn of available vacancies and to guard against the insular effects of word  Mofmouth recruiting, in which only acquaintances of current station employees learn of openings, and   Mapplicants thus tend to be drawn from the same backgrounds as current employees. Our recruitment   proposals would require cable and broadcast entities to make efforts to inform all potential applicants,   including minorities and women, of vacancies, but will be carefully crafted so as not to pressure or   encourage broadcasters to adopt racial preferences in hiring. We propose to add language to that effect   in the rule. We believe that open and effective recruitment will benefit not only prospective job   applicants, but also employers, who will have the broadest pool of qualified applicants from which to fill openings in their workforces.  S- }=62.44In addition, we believe that open and effective recruitment will help prevent discrimination   jby counteracting the potentially discriminatory effects of failure to recruit broadly. In our view, in order   to prevent discrimination, it is not sufficient for a broadcaster or cable entity merely to refrain from   =discriminating against anyone who has applied for a job at its company, particularly when its workforce   is racially and ethnically homogenous. For example, sole reliance on wordofmouth recruiting where an   employer's workforce is predominantly white male, may have the effect, whether or not intentional, of  Sr"-  ^discriminating against women and members of minority groups.ar"Z {Ol&-ԍSee also Walton Broadcasting Inc., 78 FCC 2d 857, 875 (1980), recon. denied, 83 FCC 2d 440 (1980). In order to effectively deter   discrimination, broadcast and cable entities must make an effort to inform all potential job candidates of"?#a,l(l(,,&"   openings. The Commission's recognition of this fact was reflected in its decision in 1969 to adopt a   formal rule requiring broadcasters to have an equal employment opportunity program, including outreach.   In that decision, the Commission noted that such a rule was needed in part because reliance on a   complaint procedure alone could not resolve general patterns of discrimination developed out of  S4-  Lindifference as much as out of outright bias.b4 {O- ԍPetition for Rulemaking to Require Broadcast Licensees to Show Nondiscrimination in Their Employment  {Of-Practices, 18 FCC 2d 240, 242 (1969). Similarly, Congress stated its belief in the 1992 Cable Act   that the Commission was required to enhance its EEO rules because Congress had found, among other  S-things, that effective deterrence of discrimination requires strict enforcement of EEO rules.Rc$ yO -ԍ1992 Cable Act, Section 22(a)(3).R  Sh- >63.44We also believe that ensuring that minorities and women are informed of, and have an   kopportunity to apply for, openings at broadcast stations and cable entities will result in more diverse   applicant pools which, in turn, will lead to a more diverse workforce, greater diversity of programming   >and a greater number of minorities and women with the type of experience in the broadcast and cable   industries that is seen as a prerequisite to ownership in these industries. We do not currently list a specific   recruitment proposal in either Appendix A or Appendix B other than to state that broadcast and cable   entities are required to recruit for every vacancy, except for those jobs that are filled by internal   promotion. We anticipate that the recruitment requirement will be set forth in greater detail at the Report   and Order stage of this proceeding, but we wish to solicit and consider comment from all interested parties before settling on precisely what should be required.  S7- m?64.44One approach to recruitment would afford entities the discretion to determine how to conduct   recruitment efforts as long as they can demonstrate that their efforts attract a broad cross section of   qualified applicants. This approach would be similar to the Commission's previous EEO requirements   yin that it affords entities greater flexibility to fashion their EEO programs. On the other hand, it does not   afford the specificity of other proposals. We seek comment on this proposal. In addition, we specifically   seek comment on the manner in which we could enforce this requirement. What sort of information might   Kbe sought in Form 396, the Broadcast Equal Employment Opportunity Program Report, which is filed with   Lthe broadcast renewal application, and Supplemental Investigation Sheets filed every five years by other entities?  S9- _@65.44Some broadcasters have complained in the past that our EEO rules did not provide enough   guidance regarding what steps they had to take to ensure that they were in compliance. To afford more   guidance to broadcasters and cable entities, we could require them to take specific steps, such as to use   a minimum number of recruiting sources, to fill each job vacancy. For example, broadcasting and cable   \entities could be required to recruit for all vacancies by using a certain number of national and/or local  S:-  recruiting sources, e.g., at least six. A specified number of the sources (e.g., three) could be general  S-  [recruiting sources and a specified number (e.g., three) could be minority and female specific sources. We   could require that at least one of the three specific sources would be minority and at least one would be   Mfemale. To ensure productivity of sources, entities could be required to substitute a new minority or   Lfemale specific source if its current minority/female source failed to refer any minority/female applicants  S=-  for a specified number (e.g., three) of consecutive vacancies. Although entities could use employee or   client referrals, we would not count such referrals as one of the minimum sources. In this way,   broadcasters and cable entities could not rely exclusively on inside or "wordofmouth" referrals which   may result in an employment environment open predominantly to employees and their friends, thereby   /possibly excluding minorities and women. This approach would afford clarity about exactly what is"r"c,l(l(,,%"   required to satisfy the recruitment rule. It would be rather mechanical, however, and thus may penalize   an entity that does not follow the rule even where the entity's recruiting efforts attract a broad cross section of qualified applicants for consideration.  S4- A66.44A variation of this approach would be to require entities to use a specific number of   recruitment sources, but tailor the number of sources required to the size of the local minority labor force.   For example, entities might be required to use fewer sources if their employment units were located in   an area with a small minority labor force. While the approach would still give clear guidance to   regulatees regarding recruitment measures that are required, it would adjust those requirements to some   extent to reflect the greater EEO efforts that may be warranted of broadcasters whose stations are located   !in areas with a high percentage of minorities in their local labor forces. We seek comment on this   Kproposal. How could we tailor this proposal to apply to the recruitment of women, who have a substantial presence in most, if not all, labor forces?  S6 - B67.44Under any of these proposals, we propose not to consider jobs filled by internal promotion   as a vacancy for which recruitment would be necessary. Moreover, since we do not require parity or other   ymeasure of an entity's workforce when compared with the composition of the local labor force, recruiting   ]efforts should be continuous, even when entities believe that they have already achieved a diverse   workforce. We stress that there is no maximum, minimum, or even optimal level of diversity in   employment. Our objective is to ensure that all qualified potential candidates for a position, no matter where they live or whom they know, are informed of openings.  S- C68.44We solicit comments on these and any other ways in which we can encourage entities to   expand their pools of qualified applicants without creating any incentives to prefer minority and female   applicants over other applicants. For example, what, if any, should be the minimum number of   recruitment sources that an entity should contact? If we require that an entity contact a combination of  S-  general and minority and female specific sources, see para. 65, what types of sources should be considered   kgeneral and what types should be considered minority and female specific? Should we require greater  Sm-  recruitment efforts, e.g., the contacting of more sources, from broadcasters who own a large number of   stations? Should we apply our prior standard which exempted a broadcaster from filing EEO information   with respect to minorities when minority group representation in its metropolitan statistical area or county  S-constituted less than five percent in the aggregate?d yO=- zԍWe recognize that this factor may not necessarily apply to the recruitment of women, given that women typically represent about half of the labor force of every metropolitan statistical area regardless of size.   So- D69.44Traditionally, the review of licensee efforts to recruit and attract females and minorities has   zencompassed all fulltime positions because, as discussed above, it is our belief that all positions may   potentially influence programming. We propose to continue this policy. However, we invite comment   yon whether recruitment efforts should be limited to upperlevel positions in view of the court's reasoning  S-  Lin Lutheran Church that employees in lowerlevel positions cannot influence program diversity. Should   it be even more restricted, to only those positions that have a direct influence on station programming, in light of the court's reasoning?  S - E70.44Religious Broadcasters. In keeping with Order and Policy Statement, we believe it appropriate  S!-  Lto codify in our rules that religious broadcasters may establish religious belief or affiliation as a bona fide   occupational qualification for all radio station employees. We shall also consider in this proceeding the  SA#-  petition for reconsideration and related pleadings filed with respect to the Order and Policy Statement  S$-  =because we are proposing to codify the decision announced in Order and Policy Statement as part of our"$ d,l(l(,,'"   jbroadcast EEO Rule for radio station licensees and permittees. However, television station licensees and  S-  /permittees will continue to be covered under Order and Policy Statement. With respect to television   0station employees, we will continue to allow religious broadcasters to establish religious belief or  Sh-  affiliation as a bona fide occupational qualification under Order and Policy Statement, rather than a rule, due to the limitations imposed by Section 334.  S- pF71.44Religious broadcasters who establish religious affiliation as a bona fide occupational   qualification for any job position would not be required to comply with specific recruitment requirements   for that position, but would be expected to make reasonable good faith efforts to recruit minorities and  S7-  jwomen who are qualified on the basis of their religious affiliation. As to any position for which religious   belief is not made a qualifications requirement, the licensee would be required to fill that position pursuant   to recruitment requirements adopted for all broadcasters. We emphasize that when vacancies occur,   religious broadcasters will still be required to make hiring decisions without discrimination on the basis   !of race, color, national origin or gender. Further, we propose to adopt the definition of "religious  S8 -  broadcaster" as outlined in Order and Policy Statement as part of the antidiscrimination section of the   broadcast EEO rule. Accordingly, a religious broadcaster would be defined as a licensee that is, or is   closely affiliated with, a church, synagogue, or other religious entity, including a subsidiary of such an   entity. Should a question arise as to whether a broadcaster falls under this definition, we propose to make   an individual determination based upon an evaluation of the religious entity's characteristics, including   whether the entity operates on a nonprofit basis, whether there is a distinct religious history, and whether   the entity's articles of incorporation set forth a religious purpose. We invite comment on all aspects of our proposal.  Sn- OG72.44SelfAssessment. We believe broadcasters and cable entities should continue to analyze their   EEO programs on an ongoing basis. We request comment on how often such analysis should occur and   how we should enforce it. We propose that broadcasters submit a statement in their EEO Program Report   L(Form 396), filed as part of their renewal applications, detailing their analysis for the 12 months prior to   filing of their renewal application. Cable entities would submit the same statement with their Form 395A   Supplemental Investigation Sheet, filed every five years with the Commission, detailing a 12 month   yanalysis of their EEO program. Consistent with the possibility that, in the future, entities may file these   yforms with the Commission electronically, the forms, including EEO Program Reports, may require filers   to answer a series of questions with a "yes" or "no" response. We also seek comment on the following   questions. What should be the focus of the analysis? What should it include? What should it exclude?   NWe propose that an entity be required to analyze its efforts to recruit, hire and promote in a non  jdiscriminatory fashion and address any difficulties in implementing its EEO program. Accordingly, such   yanalysis could include efforts to cooperate with any existing union in the development of EEO programs,   to review seniority practices for nondiscrimination, to assess the productivity of recruiting sources, to   examine employee pay and benefits for nondiscrimination, to utilize media for recruitment purposes in   a manner that contains no indication of a preference for one race, ethnic origin or sex over another, and   to avoid the use of discriminatory selection techniques or tests. An analysis would not include the use   of employment profiles to determine the adequacy of EEO efforts. If the forms require filers to answer a series of questions requiring a "yes" or "no" response, what types of questions should be asked?   Sr"- }H73.44Recordkeeping. We propose to continue requiring broadcasters and cable entities to retain   records to prove that they have made good faith efforts to broaden their applicant pools for all vacancies.   Such records could include, for example, listings of recruiting sources utilized for each vacancy and the   {dates the vacancies were filled; dated copies of all advertisements, bulletins and letters announcing   jvacancies; and compilations totaling the race, ethnic origin, and gender of all applicants generated by each   recruiting source according to vacancy. While recordkeeping and selfassessment are distinct concepts,   we believe that recordkeeping is a vital component of selfassessment. If an entity does not keep adequate"@'d,l(l(,,+"   \records, we believe that it cannot meaningfully assess the effectiveness of its EEO program. Further,   without such records, the Commission is unable to ascertain whether an entity is making sincere efforts   to recruit women and minorities into its applicant pools. Records of the race, ethnic origin, and gender   jof applicants are necessary so that entities can evaluate the productivity of their recruitment sources and   change them, if necessary. We seek comments on these views and any other ways in which we can   monitor efforts by entities to broaden their applicant pools to include qualified minorities and women  S-without requiring or encouraging preferential hiring of any particular group of people. YY=YY  Sh- I74.44Enforcement. We propose that enforcement occur throughout the license term as well as at   =renewal time for broadcasters. Since the terms of license for radio and television broadcast stations have   been extended to eight years, we believe it necessary to conduct enforcement on an ongoing basis via   .random audits in order to ensure compliance. For cable entities, we propose to continue reviewing EEO   programs every year as part of the annual certification process. Appropriate sanctions would be imposed   for entities that violate the recruiting and recordkeeping requirements of our EEO rules, as discussed  S6 -  Nabove. Accordingly, in keeping with the Court's reasoning in Lutheran Church, entities would be   sanctioned for deficiencies in their recruitment and recordkeeping efforts and not for the results of their   hiring decisions, subject of course to their duty to refrain from unlawful discrimination. In addition, we propose sanctions for failure to file a selfassessment statement.  S8- J75.44We invite comment on this approach. Specifically, is the Commission's proposed enforcement   adequate regarding recruitment of minority and female applicants and, if not, to what extent should   changes be made? What should trigger enforcement review? In what manner should this review be   conducted? Should the Commission look at the composition of applicant pools to evaluate the   productivity of an entity's recruitment sources and whether the entity has taken action in a timely way to  S9-  \find replacements for unproductive sources? Should entities be required to certify that they replaced   <unproductive recruiting sources? If so, should we sanction those entities that make untruthful certifications   land, if so, how? What level of increased enforcement would be necessary to maintain an adequate incentive for repeat violators to comply with our EEO rules?  S:- K76.44MidTerm Review. As discussed above, because of the decision in Lutheran Church, we must   develop another method for analyzing a television licensees' employment practices at midterm.   Therefore, we propose that television licensees submit a narrative statement, as previously described,   0midway through their license terms, as well as at the end of their license terms with their renewal   applications. In view of the creation of new electronic application filing procedures, however, we may   /choose, instead of requiring a narrative submission, to create a form on which television broadcasters would provide pertinent information in a "yes" or "no" answer format.  S- mL77.44Forms. In conjunction with our proposal to adopt new EEO rules, we propose to revise FCC   kForms 396, 396A, 395A, 395B, and 395M. We believe that it is appropriate to eliminate all form   sections concerning employment profile analysis, including comparisons with local labor force statistics   Mand alternative labor force statistics. In addition, these new forms would no longer contain questions   pertaining to the number of minority or female hires but would continue to request information concerning  S!-  Lthe total number of employees, as well as the number of minorities and women, who are employed (e.g.,  Sr"-  on Form 395B) and have been promoted (e.g., on Form 396). We propose to request information   concerning the total number of applicants received from each listed source, as well as the total number   of minority and total number of female applicants received. If the new EEO rules focus on recruitment   [requirements for fulltime positions, we propose to eliminate the requirement that broadcasting licensees   -report parttime employees on the Form 395B, the Broadcast Station Annual Employment Report. Thus,   .we believe that we may delete the parttime employment grid from this form. Similarly, for this reason,   Zwe propose to require cable entities to report only fulltime employees on Forms 395A and 395M, except"A'd,l(l(,,+"  S-for a listing of positions by job title, which is required by statute to include parttime and fulltime.]e {Oh-ԍSee 47 U.S.C.  554(d)(3)(A).]  S- nM78.44The reporting requirements must be crafted to reflect the recruitment requirements that we   ultimately adopt in this proceeding. If we adopt the proposal requiring entities to contact a specific   number of recruitment sources, we propose to change Form 396, the Broadcast Equal Employment   Opportunity Program Report ("the EEO Program Report"), to require filers to provide a specified number   of general sources and minority and female specific sources used when recruiting for each vacancy subject   to the rules. The EEO Program Report would also require a licensee to certify whether it substituted a   Onew minority or female specific source if its current minority/female source failed to refer any   minority/female applicants for at least three consecutive vacancies. If we adopt the proposal allowing   broadcasters the discretion to choose their own methods of recruitment as long as their applicant pools are   Ldiverse, then we would request information in Form 396 concerning the diversity of a station's applicant   .pools. Another change that we might make to Form 396 is to require a station with fewer than five full  =time employees to report information concerning employment discrimination complaints filed against it.   In keeping with the proposed new EEO requirements, the new Form 396 would require broadcasters to   Nsubmit a statement detailing an analysis of their EEO programs for the 12 months prior to license   .expiration and may ask questions concerning what, if any, training or internship programs for minorities   .and/or women they have implemented. Cable entities may be required to file the same certification with   their Form 395A or 395M Supplemental Investigation Sheet. As stated above, the questions on these revised forms may be framed in a "yes" or "no" format, consistent with electronic filing.  S- nN79.44We believe we should still require broadcast and cable entities to provide annual workforce   data on all positions in order to continue our monitoring of industry trends. Consequently, we propose   zthat licensee and cable entities continue to submit annual workforce data for all jobs on Forms 395A,   395B, and 395M. These employee statistics will not be used to assess EEO compliance. We invite comment on all aspects of the proposal to revise the FCC's EEO forms.  S- O80.44Delegated Authority. Section 0.283 of the Commission's Rules requires the Chief of the Mass  Sl-  0Media Bureau to refer certain matters to the Commission for disposition.  See 47 C.F.R.  0.283.   =Specifically, Section 0.283(b)(1)(iii) directs all petitions to deny, informal objections and other petitions   lagainst television and radio broadcasting applications for new or modified facilities or for renewal,   assignment or transfer of control to be referred to the Commission if "the applicant in question falls   outside the applicable processing criteria in its employment of women and minorities." See 47 C.F.R.    0.283(b)(1)(iii). Since use of the processing criteria, which involved a comparison of a station's  S;-  \employment profile with the local labor force, is inconsistent with the Lutheran Church decision (see  S -  kdiscussion, para. 12 supra), we propose to amend this section by deleting its reference to the criteria.   yAccordingly, the phrase "or the applicant in question falls outside the applicable processing criteria in its  S-  employment of women and minorities" would be deleted in its entirety. See Appendix C. We seek comment on this proposal.  S - C. Proposals Incorporated From Streamlining Proceeding  S!- P81.44In our pending proceeding in Streamlining, we sought comment regarding various proposals   Oto streamline the Commission's EEO requirements with respect to certain broadcasters whose   circumstances may justify this type of relief. These proposals included alternatives for reducing possible   Lpaperwork burdens on licensees who qualify for that relief, new incentives for the establishment of joint   recruitment efforts, and revisions to the test by which stations are permitted to rely on an alternative labor"$Ze,l(l(,,}("   force when analyzing their EEO efforts. We also sought comment on guidelines for imposing sanctions   for EEO violations. As the Streamlining Proceeding concerned outreach portions of the Broadcast EEO  S-  Rule, which were declared unconstitutional by the court in Lutheran Church, we hereby terminate that  Sh-  proceeding except with respect to the pending petition for reconsideration of Order and Policy Statement.   However, we will discuss below certain proposals originating in the streamlining proceeding that may still be viable.  S- Q82.44Our review of the proposals outlined in Streamlining and described in comments responding  Sk-  to that proceeding reveals that several of the proposals are appropriate to set forth in this NPRM.f~k {O- ԍAlthough certain proposals arising from Streamlining are set forth and discussed in this proceeding, we  {O -  ybelieve that certain topics are rendered moot by the Lutheran Church decision. Labor force statistics are not   Jproposed to be used as part of our EEO analysis. Thus, any streamlining proposals concerning this factor are moot,   including changing the alternative labor force test and exempting a licensee from keeping detailed records of its EEO   efforts if its employment profile meets a certain statistical employment benchmark. Finally, we believe that the  {O -  forfeiture guidelines proposed in Streamlining are no longer viable as many of the criteria in the guidelines are no longer proposed to be used to assess a licensee's EEO program.  S9-  ZHowever, these proposals and responses to them were made prior to Lutheran Church and prior to the new  S-  proposals for changes to the EEO Rule that are presented in this NPRM. Therefore, in light of the change  S-  of circumstances since Streamlining was released and comments were filed in response, we will not  S -  incorporate the comments to Streamlining in this proceeding. Instead, we ask that commenters to the  Sq -  streamlining proceeding respond to the proposals set forth in this NPRM, indicating how, if at all, their   opinions with respect to these proposals have changed. For example, do commenters still support or   oppose these proposals and, if so, do they have the same reasons for their support or opposition? What   new or additional reasons do they have for their positions concerning these proposals as a result of  S -Lutheran Church and/or the new proposals presented in this NPRM?  SA- R83.44In Streamlining, we noted that broadcasters have expressed concerns that stations with small   staffs or that are located in small markets have particular difficulty attracting and retaining minority   [employees because they have limited resources and difficulty competing for talent with larger stations in  S-  bigger markets.Lg {OW-ԍ See Report.L We indicated there our goal of maintaining EEO requirements that are not unduly   burdensome for such stations and, at the same time, ensuring an effective EEO enforcement program for   the broadcast industry. We also invited comment on proposals designed to minimize undue burdens on   stations generally irrespective of a station's staff or market size. We reaffirm these goals, and accordingly  S-  Lseek comment on several proposals to afford such relief. We note that the proposals set forth below are   not intended to be exclusive. Rather, we encourage commenters to submit any other proposals that would limit undue paperwork burdens for all broadcasters while maintaining effective EEO industry oversight.  S- ~S84.44Small Stations. In Streamlining, we raised several qualifying factors that might entitle a   station to receive administrative relief from EEO reporting and recordkeeping obligations, including the  S-  >small staff size of a station, e.g., 10 or fewer fulltime employees, and the small size of the market in   which a station is located. The assumption for making the former a qualifying factor for administrative   jrelief was that stations with small staffs, such as those with 10 or fewer fulltime employees, have fewer   hiring opportunities and limited financial, personnel and time resources available for recruiting. The basis   for making the latter a qualifying factor was that stations located in small markets may have difficulties   competing for employees with stations in larger markets, which can offer higher salaries and greater career opportunities."{g,l(l(,,!"Ԍ S- 1ԙT85.44One form of administrative relief proposed in Streamlining was to exempt qualifying stations   from EEO reporting and recordkeeping requirements, just as stations with fewer than five fulltime  S-  employees were exempt under the prior EEO policy. Qualifying stations would be required to file only   =the first page of Form 395B and Form 396A, and the first two pages of Form 396, certifying that they   qualify for relief. Such a change would require amending 47 C.F.R.  73.3612, which currently requires   /a licensee or permittee of a broadcast station with five or more fulltime employees to file an Annual   Employment Report. One concern regarding this proposal is that it would reduce the amount of   information that we currently collect to monitor employment trends in the broadcast industry, and thus   give us an incomplete picture of those trends. We seek comment on the issue of whether stations with   small staffs or stations in small markets should receive administrative relief from EEO reporting and  S-recordkeeping requirements, and specifically on the administrative relief proposed in Streamlining.  S - CU86.44We invite comment as to whether we can and should adopt such relief. In Office of  Sl -  Communications of the United Church of Christ v. FCC, 560 F.2d 529, 532 (2nd Cir. 1977), the court   found that a Commission decision to change the employment threshold for required submission of detailed   [written EEO programs, from five or more fulltime employees on a station's staff to 10 or more fulltime   employees, was arbitrary and capricious because the Commission had failed to provide a reasoned   justification for departing from its prior precedent and policy. Therefore, if we decide, after reviewing   <the comments to this proceeding, that it is appropriate to change the EEO reporting employment threshold,   we must set forth substantial justification for such a change. Accordingly, we request that commenters  S-  who favor this option provide ample evidence as to why this size station deserves this type of relief.h {Op- ԍWe note that the NPRM's Initial Regulatory Flexibility Analysis also requests comment on this type of relief.   Second, unless specifically authorized by statute, an agency may not prescribe its own small business size   standard unless, among other things, the proposed size standard is approved by the Small Business  So-  yAdministration.i o" yO1- ԍSection 3(a) of the Small Business Act, 15 U.S.C.  632(a), as amended by Section 222 of the Small   Business Credit and Business Opportunity Enhancement Act of 1992, Pub. L. No. 102366,  222(b)(1), 106 Stat.   999 (1992), as further amended by the Small Business Administration Reauthorization and Amendments Act of 1994, Pub. L. No. 103403,  301, 108 Stat. 4187 (1994). Raising the employment threshold for EEO reporting and recordkeeping requirements   ymay create a new definition of small business requiring approval from the Small Business Administration   ("SBA") before doing so. Finally, implementation of these proposals as to television licensees and   permittees may be barred by Section 334(a) of the Communications Act, which prohibits revision of EEO regulations and forms pertaining to such entities. We invite comment as to these issues.  S=- V87.44Job Fairs. In Streamlining, we proposed that qualifying licensees be given the option of   [choosing to contact recruitment sources likely to refer qualified female and minority applicants for every   vacancy or to commit to managementlevel, inperson participation in a minimum number of recruiting   /events every year, such as job fairs or oncampus interviewing at local schools. Licensees could also  Sr-choose both options and could make their choice known on both Form 396 and Form 396A.   S - W88.44Superduopoly. In comments filed in response to Streamlining, Joint Commenters proposed   that the Commission declare that a superduopoly (three or more commonly owned radio stations in the   same service AM or FM located in the same market) should be considered as one employment unit   ^that would include not only all station employees but also the employees at the stations' local"t i,l(l(,,!"  S-  headquarters.j {Oh-ԍComments filed by Joint Commenters in response to Streamlining at 32122. Joint Commenters' justification for this proposal was that, because many stations are   Zbecoming superduopolies, positions that may have been located at individual stations when they were stand   alone stations, such as sales, promotion or programming, may be moved to a broadcaster's local  Sg-  yheadquarters, which were previously not regulated by the EEO Rule.kgZ {Oa-ԍComments filed by Joint Commenters in response to Streamlining at 9596. We note that, because of Section  S4-  L334 of the Communications Act, discussed supra, this proposal could not be implemented for television stations.  S- X89.44Joint Commenters also proposed that superduopolies file complete 395Bs for each of their   Nstations and headquarters in the same market unless combined they have fewer than five fulltime   employees. Joint Commenters argue, among other things, that this reporting proposal would prevent a   broadcaster from masking its failure to employ minorities at most stations by employing them at only  S-  Mone.l {O\-ԍComments filed by Joint Commenters in response to Streamlining at 32122. The Mass Media Bureau's current policy, as reflected in a 1994 Interpretive Ruling,m~ {O- ԍPetition for Issuance of Interpretive Ruling Concerning FCC Form 395B, Broadcast Annual Employment  {O-Report, DA 94553. is that   >commonly owned stations located in the same marketthat have at least one employee whose duties   involve work for all stations equallyshould report all employees of all stations on one station's form (two   stations' form if an AM/FM combination is involved). In such a situation, broadcasters were instructed   jto indicate in the forms filed for the remaining stations that the stations' employees are reported with the   employees of another station in the latter station's 395B. This policy was developed because the data   lprocessing technology available to the Commission at that time did not allow for the employment   information of more than one station to be reported on the same Form 395B, except in cases involving   an AM/FM combination. We anticipate that our data processing technology will, in the near future, be   Lable to accommodate the reporting of more than one station's information in this situation. Accordingly,   we request comment on a proposal to require licensees to file one 395B for all commonly owned stations   =in the same market that equally share at least one employee. We also request comment on an alternative   Mproposal that would require licensee's to file one 395B for all commonly owned stations in the same market even if they share no employees.  S- }Y90.44Joint Recruitment. In Streamlining, we requested comment on how best to award credit to   licensees for participation in joint recruitment efforts, such as central recruitment sources, and minority   training, internship and employment programs. We seek to encourage participation in these efforts   because we continue to believe that, "by combining financial and personnel resources of other broadcasters   ?or entities with resources for identifying qualified minority and female applicants, a broadcaster's   administrative burdens in time and cost spent recruiting and keeping records will be substantially reduced  S-  while the effectiveness of its outreach will be increased."Xn {O#-ԍStreamlining, 11 FCC Rcd at 5170.X Commenters should address how credit can be given for joint recruitment efforts under the proposals for a new EEO Rule.  S - Z91.44We take this opportunity to encourage broadcasters, as well as cable entities, to voluntarily   engage in these and other types of EEO efforts. For example, the Commission is familiar with two   outreach programs which offer sound guidance for the type of programs broadcasters can design and in"l n,l(l(,, "   which they can participate. The Radio Advertising Bureau sponsors Radio Careers Workshops across the   lcountry which attract a significant number of applicants. Participating stations can access lists of   =applicants from these workshops. These lists provide information on applicants' experience, education,   gender and race. The Broadcast Executive Directors Association ("BEDA") has developed a proposal for   \a Model Broadcast Careers Program Road Map. This program has several components including: 1)   Lexpanding education courses and experience opportunities; 2) educating stations in nondiscrimination in   employment and recruitment outreach; 3) recruitment outreach including posting job vacancies on web   sites; and 4) promoting awareness of BEDA's Careers Program through newsletters, speakers' bureaus,   \career fairs and promotional announcements aired on participating stations. Examples of training and   internship programs with which the Commission is familiar include a work/study program founded by the   iFoundation for Minority Interests in Media, Inc. and called "Media Careers for Minorities," which provides   high school and college students with paid jobs in the broadcast and cable industries and college tuition,   and a program sponsored by the Kaitz Foundation, which funds internships for minorities in cable. We   believe that participation by broadcasters in such endeavors would provide benefits to the broadcaster   =independent of any potential regulatory credit that might accrue by, for example, making available to the broadcaster the largest pool of qualified applicants for a particular position.  S - 0IV. CONCLUSION ă  S7- A[92.44In this NPRM, we suggest and request comment on proposals to change the Commission's  S-  =EEO rules and policies to be consistent with Lutheran Church. Pursuant to the remand of the court, we   Lalso request comment on our statutory authority to retain the antidiscrimination prong of our broadcast  S-  |EEO Rule. Finally, we terminate Streamlining, MM Docket 9616, except for the petition for  Sn-  reconsideration filed in response to Order and Policy Statement, which will be considered in this  S<-  proceeding. We will also consider, in this NPRM, several proposals originating from Streamlining,   ]concerning, among other things, administrative relief for small broadcasters and how to best credit broadcasters for participation in joint recruitment efforts.  Sq- V. ORDERING CLAUSES ă  S - \93.44Accordingly, IT IS ORDERED that pursuant to the authority contained in Sections 1, 4(i),   4(k), 257, 301, 303(r), 307, 308(b), 309, 334, 403, and 634 of the Communications Act of 1934, as   amended, 47 U.S.C.151, 154(i), 154(k), 257, 301, 303(r), 307, 308(b), 309, 334, 403, and 554, this  Sr-Notice of Proposed Rule Making IS ADOPTED.  S - |]94.44IT IS FURTHER ORDERED that MM Docket No. 9616, Streamlining Broadcast EEO Rule  S-  and Policies, IS TERMINATED except with respect to the petition for reconsideration filed in response  S-to Order and Policy Statement.  SD- ^95.44IT IS FURTHER ORDERED, That the Office of Public Affairs, Reference Operations Branch,  S -  shall send a copy of this NPRM, including the Initial Regulatory Flexibility Analysis, to the Chief Counsel  S -  for Advocacy of the Small Business Administration in accordance with the Regulatory Flexibility Act, see 5 U.S.C.  605(b).  SG#- VI. ADMINISTRATIVE MATTERS ă  S$- O_96.44Comments and Reply Comments. Pursuant to Sections 1.415 and 1.419 of the Commission's   rules, 47 C.F.R.  1.415, 1.419, interested parties may file comments on or before January 19, 1999, and   reply comments on or before February 18, 1999. Comments may be filed using the Commission's  SH'-  yElectronic Comment Filing System (ECFS) or by filing paper copies. See Electronic Filing of Documents"H' n,l(l(,,+"  S-in Rulemaking Proceedings, 63 Fed. Reg. 24,121 (1998).  S- `97.44Comments filed through the ECFS can be sent as an electronic file via the Internet to   -. Generally, only one copy of an electronic submission must be filed.   yIf multiple docket or rulemaking numbers appear in the caption of this proceeding, however, commenters   must transmit one electronic copy of the comments to each docket or rulemaking number referenced in   the caption. In completing the transmittal screen, commenters should include their full name, Postal   MService mailing address, and the applicable docket or rulemaking number. Parties may also submit an   electronic comment by Internet email. To obtain filing instructions for email comments, commenters   Nshould send an email to ecfs@fcc.gov, and should include the following words in the body of the message, "get form ԍThe amount of $10 million was used to estimate the number of small business establishments because the   relevant Census categories stopped at $9,999,999 and began at $10,000,000. No category for $10.5 million existed. Thus, the number is as accurate as it is possible to calculate with the available information. Thus, the proposed rules   will affect approximately 1,584 television stations; approximately 77%, or 1,219 of those stations are  S-  >considered small businesses.{,  yO- ԍWe use the 77 percent figure of TV stations operating at less than $10 million for 1992 and apply it to the 1998 total of 1,584 TV stations to arrive at stations categorized as small businesses. These estimates may overstate the number of small entities since the   !revenue figures on which they are based do not include or aggregate revenues from nontelevision   .affiliated companies. We recognize that the proposed rules may also affect minority and women owned   stations, some of which may be small entities. In August 1998, minorities owned and controlled 32  S5-  (2.6%) of 1,209 commercial television stations in the United States.|5  {OY- ԍMinority Commercial Broadcast Ownership in the United States, U.S. Dep't. of Commerce, National   Telecommunications and Information Administration, The Minority Telecommunications Development Program   Z("MTDP") (August 1998). MTDP considers minority ownership as ownership of more than 50% of a broadcast   [corporation's stock, voting control in a broadcast partnership, or ownership of a broadcasting property as an  {O{-  yindividual proprietor. Id. The minority groups included in this report are Black, Hispanic, Asian, and Native American. According to the U.S. Bureau of   the Census, in 1987 women owned and controlled 27 (1.9%) of 1,342 commercial and noncommercial  S-television stations in the United States.} {Oo- ԍSee Comments of American Women in Radio and Television, Inc. in MM Docket No. 94149 and MM  {O9-  Docket No. 91140, at 4 n.4 (filed May 17, 1995), citing 1987 Economic Censuses, WomenOwned Business, WB87  -1, U.S. Dep't of Commerce, Bureau of the Census, August 1990 (based on 1987 Census). After the 1987 Census   report, the Census Bureau did not provide data by particular communications services (fourdigit Standard Industrial   Classification (SIC) Code), but rather by the general twodigit SIC Code for communications (#48). Consequently,   isince 1987, the U.S. Census Bureau has not updated data on ownership of broadcast facilities by women, nor does   the FCC collect such data. However, the Commission recently amended its Annual Ownership Report Form 323 to  {O!-  require information on the gender and race of broadcast license owners in future filings. See 1998 Biennial  {O"-  Regulatory Review Streamlining of Mass Media Applications, Rules and Processes, Report and Order, MM Docket No. 9843 (adopted October 22, 1998)   The proposed rule changes would also affect radio stations. The SBA defines a radio broadcasting station  S6 -  that has no more than $5 million in annual receipts as a small business.R~6  yOv'-ԍ13 C.F.R.  121.201, SIC 4832.R A radio broadcasting station"6 *0~,l(l(,, "  S-  is an establishment primarily engaged in broadcasting aural programs by radio to the public. yOh-ԍEconomics and Statistics Administration, Bureau of Census, U.S. Department of Commerce, Appendix A9. Included  S-  \in this industry are commercial, religious, educational, and other radio stations.:X {O-ԍId.: Radio broadcasting   stations which primarily are engaged in radio broadcasting and which produce radio program materials  Sg-  are similarly included.:g {O-ԍId.: However, radio stations which are separate establishments and are primarily  S4-  engaged in producing radio program material are classified under another SIC number.:4| {OP -ԍId.: The 1992   Census indicates that 96 percent (5,861 of 6,127) of radio station establishments produced less than $5  S-  million in revenue in 1992. yO| - ԍThe Census Bureau counts multiple radio stations located at the same facility as one establishment. Therefore, each co-located AM/FM combination counts as one establishment. Official Commission records indicate that 11,334 individual radio stations  S-  were operating in 1992.[f  yO-ԍFCC News Release No. 31327, Jan. 13, 1993.[ As of October 1998, official Commission records indicate that 12,448 radio  Sh-stations are currently operating.h  yO-ԍFCC News Release, Broadcast Station Totals as of October 30, 1998 (released November 18, 1998).   yThe proposed rule changes would also affect small cable entities, including MVPDs. SBA has developed   a definition of a small entity for cable and other pay television services, which includes all such companies  S -  generating $11 million or less in annual receipts.S  yO-ԍ13 C.F.R.  121.201 (SIC 4841).S This definition includes cable system operators, closed   zcircuit television services, direct broadcast satellite services ("DBS"), multipoint distribution systems   ("MDS"), satellite master antenna systems, and subscription television services. According to the Bureau   /of the Census, there were 1,423 such cable and other pay television services generating less than $11  S -  million in revenue that were in operation for at least one year at the end of 1992.  yO- ԍ1992 Economic Census Industry and Enterprise Receipts Size Report, Table 2D, SIC 4841 (U.S. Bureau of the Census data under contract to the Office of Advocacy of the U.S. Small Business Administration). Below we discuss these services to provide a more succinct estimate of small entities.  S7- Cable Systems: The Commission has developed, with SBA's approval, its own definition of small   cable system operators. Under the Commission's rules, a "small cable company" is one serving fewer than  S-  400,000 subscribers nationwide.$n yO"- ԍ47 C.F.R.  67.901(3). The Commission developed this definition based on its determination that a small  {O#-  cable system operator is one with annual revenues of $100 million or less. Implementation of Sections of the 1992  {Or$-  iCable Act: Rate Regulation, Sixth Report and Order and Eleventh Order on Reconsideration, 10 FCC Rcd 6393 (1995). Based on our most recent information, we estimate that there were  S-  1,439 cable operators that qualified as small cable companies at the end of 1995.Z yO'-ԍPaul Kagan Associates, Inc., Cable TV Investor, Feb. 29, 1996 (based on figures for Dec. 30, 1995). Since then, some of"+,l(l(,,"   Lthose companies may have grown to serve over 400,000 subscribers, and others may have been involved   .in transactions that caused them to be combined with other cable operators. Consequently, we estimate   >that there are fewer than 1,439 small entity cable system operators that may be affected by the rules proposed herein.   The Communications Act also contains a definition of a small cable system operator, which is "a cable   operator that, directly or through an affiliate, serves in the aggregate fewer than 1% of all subscribers in   the United States and is not affiliated with any entity or entities whose gross annual revenue in the  Sh-  aggregate exceeds $250,000,000."Jh yO-ԍ47 U.S.C.  543(m)(2).J The Commission has determined that there are 61,700,000   subscribers in the United States. Therefore, we found that an operator serving fewer than 617,000   jsubscribers shall be deemed a small operator, if its annual revenues, when combined with the total annual  S-  krevenues of all of its affiliates, do not exceed $520 million in the aggregate.UX yO -ԍ47 C.F.R.  76.1403(b) (SIC 4833)U Based on available data,  S -  =we find that the number of cable operators serving 617,000 subscribers or less totals 1,450.  yO$-ԍPaul Kagan Associates, Inc., Cable TV Investor, Feb. 29, 1996 (based on figures for Dec. 30, 1995). Although   Lit seems certain that some of these cable system operators are affiliated with entities whose gross annual   revenues exceed $250,000,000, we are unable at this time to estimate with greater precision the number   of cable system operators that would qualify as small cable operators under the definition in the Communications Act.  Sj- @MDS: The Commission has defined "small entity" for purposes of the auction of MDS as an   entity that, together with its affiliates, has average gross annual revenues that are not more than $40  S-  Lmillion for the preceding three calendar years.Mx yO-ԍ47 C.F.R.  21.961(b)(1).M This definition of a small entity in the context of MDS  S-  auctions has been approved by the SBA.$ {Oz- ԍSee Amendment of Parts 21 and 74 of the Commission's Rules With Regard to Filing Procedures in the   Multipoint Distribution Service and in the Instructional Television Fixed Service and Implementation of Section 309(j)  {O -  of the Communications Act Competitive Bidding, MM Docket No. 94131 and PP Docket No. 93253, Report and Order, 10 FCC Rcd 9589 (1995).  The Commission completed its MDS auction in March 1996   {for authorizations in 493 basic trading areas (BTAs). Of 67 winning bidders, 61 qualified as small  Sl-entities.l  yO- ԍOne of these small entities, O'ahu Wireless Cable, Inc., was subsequently acquired by GTE Media Ventures, Inc., which did not qualify as a small entity for purposes of the MDS auction.  ?MDS also includes licensees of stations authorized prior to the auction. The SBA has developed   a definition of small entities for pay television services, which includes all such companies generating $11  S-  million or less in annual receipts.HL  yO$-ԍ13 C.F.R.  121.201.H This definition includes multipoint distribution systems, and thus   applies to MDS licensees and wireless cable operators which did not participate in the MDS auction.   Information available to us indicates that there are 832 of these licensees and operators that do not   generate revenue in excess of $11 million annually. Therefore, for purposes of this IRFA, we find there",,l(l(,,"   [are approximately 892 small MDS providers as defined by the SBA and the Commission's auction rules, and some of these providers may be subject to our amended EEO rules.  Sg- !DBS: As of October 1997, there were nine DBS licensees, some of which were not in operation.   The Commission does not collect annual revenue data for DBS and, therefore, is unable to ascertain the   Lnumber of small DBS licensees that could be impacted by these proposed rules. Although DBS services   requires a great investment of capital for operation, we acknowledge that there are several new entrants   in this field that may not yet have generated $11 million in annual receipts, and therefore may be categorized as small businesses, if independently owned and operated.   =An alternative way to classify small entities is by the number of employees. We estimate that the total  S-  number of fullservice broadcast stations with 4 or fewer employees is 5,186. yO8 - LԍWe base this estimate on a compilation of 1997 Broadcast Station Annual Employment Reports (FCC Form 395B), performed by staff of the Equal Employment Opportunity Branch, Mass Media Bureau, FCC. Similarly, we estimate   that in 1997, the total number of cable employment units with six or more fulltime employees was 2,750,   jand that 1,900 cable employment units employed fewer than six fulltime employees. Also, in 1997, the   total number of other MVPDs employing six or more fulltime employees was 725, and 225 such MVPDs employed less than six fulltime employees.  S -  ! E. Steps Taken to Minimize Significant Economic Impact on Small Entities, and Significant  Sk-Alternatives Considered:  S-  This Notice solicits comment on a variety of alternatives discussed herein. Any significant alternatives  S-  .presented in the comments will be considered. As an example, the Notice requests comment on whether  S-  we should grant administrative relief to stations with small staffs or in small markets. Finally, the Notice   seeks comment on whether to raise the employment threshold for EEO reporting and recordkeeping   Mrequirements. This change may create a new definition of small business requiring approval from the SBA before doing so.  S- F. Federal Rules that Overlap, Duplicate, or Conflict with the Proposed Rules : The proposed rules do not overlap, duplicate or conflict with any other rules. "- ,l(l(,,N"  ?< #x6X@`7X@#  Xz-\#Xx PE37}XP# JOINT STATEMENT OF  FCC CHAIRMAN WILLIAM KENNARD  X4- AND COMMISSIONER GLORIA TRISTANI  X-l GRe: EQUAL EMPLOYMENT OPPORTUNITY RULES AND POLICIES  X-L  (MM Docket No. 98204, MM Docket No.9616) l lUThroughout its history, the United States has endured and overcome a host of social and economic challenges. Founded in the spirit of indomitable independence, and guided by principles of liberty, justice and equality, our nation has been challenged throughout its history to reconcile those lofty notions with some ugly political realities. From the abolition of slavery to women's suffrage, from the civil rights movement to reparations for JapaneseAmericans interred during World War II, America has usually managed to find ways to do the right thing although not always at the right time. Creating opportunity irrespective of race and gender in the mass media industries has not always been as American as apple pie. For too many years, minorities and women have not found opportunity in these industries industries that profoundly affect our culture. On the bright side, in recent years there has been significant progress. In 1971, only 6.8 percent of upperlevel broadcast jobs were held by minorities, and 6.9 percent were held by women. Recent reports indicate that minorities now hold 18.2 percent of upper level jobs and women hold 34.9 percent. Government played a significant role in this progress. Since 1969, the FCC has had rules that require broadcasters to reach out into their communities to provide equal employment opportunities. After the Court of Appeals invalidated these rules earlier this year, several industry leaders stepped forward and pledged that they would continue to follow equal employment opportunity (EEO) principles regardless of whether legally required to do so. We commend those industry leaders who stepped forward. But there remains an essential role for government to play in ensuring that all industry participants will act to combat discrimination. Why is this important? The mass media reflect our nation's culture, our ideals, and our aspirations, and is the vehicle by which the majority of Americans get the information upon which to make decisions and shape values. This is especially true for children, who spend an average of five hours each day in front of a television set. The notion that a medium so important and so influential in our society should not have the fullest participation of all segments of our society is simply unacceptable. This issue is not just about jobs for historically underrepresented groups and the rules are not just important to minorities and women. No, the issue is whether we will ensure that the mass media reflect all of society for the benefit of all of society. We believe that these principles are the bedrock of our democratic system of government and our way of life as a free and inclusive society. "v'.,l(l(,, +"ԌThe new EEO rules that we propose today address the concerns of the Court of Appeals. They will ensure that those entrusted with the responsibility to serve the public interest reach into their communities and create opportunity for talented men and women of all colors. These rules are essential to enable the Commission to combat discrimination in the marketplace. A licensee who has discriminated on the basis of someone's race, ethnicity or gender cannot demonstrate the character needed to be a public trustee. We commend our fellow Commissioners, and the FCC staff, for their hard work in crafting these proposed rules to continue the important and unfinished work of ensuring equality of opportunity in a fashion that addresses the court's concerns.   X- ,Separate Statement vbof  Xt--Commissioner Ness ă  W.- Re: Equal Employment Opportunity Rules and Policies (MM Docket No. 98204 and MM Docket No. 9616)  Y-Today we propose new rules intended to ensure that women and minorities continue to have a fair chance to be considered for employment and promotion at broadcast stations, cable systems, and other multichannel video programming distributors (MVPDs). I fully support this item but write separately to emphasize the following: First, I reiterate my longstanding support for equal employment opportunity, as well as my view that voluntary efforts are critical if women and minorities are to be fully able to seek and obtain employment, training, and promotion in the mass media and telecommunications industries. Since I joined the Commission in 1994, I have vigorously advocated strong, but fair, enforcement of our rules. I also have encouraged broadcasters and cable operators voluntarily not only to hire, but also to train, qualified women and minorities for management. Ultimately, such steps will help open doors to senior management and, for some, ownership of media properties. Without such steps, we are destined to see a lack of diversity in the ownership and management of broadcast and cable enterprises.  Yr-Second, we have taken to heart the Lutheran Church decision of the Court of Appeals for the District of Columbia and we are responding fully to the concerns of the court in that case. While I believe that, both as to its design and its application, the Commission's outreach rules complied with Constitutional standards, nonetheless, the Court has spoken. The new EEO proposals made today will not require licensees to measure their hiring record against labor force information and should not affect, in any way, their ability to hire the best qualified people. In response to the court's view that our comparison of the station's employment data against local workforce data led licensees "to hire with an eye toward meeting the numerical target," we have discontinued that comparison and have scrupulously sought to eliminate that potentiality from our new proposals. Finally, our EEO rules have never been and should not become the upper limit in this area. There is ample evidence that some leading broadcasters and cable operators will, indeed, take more aggressive steps on their own to enlarge their pools of qualified  Y"-applicants. I was heartened that following the Lutheran Church decision, several exemplary broadcasters publicly committed to continue, and expand upon, their recruitment and training efforts. These efforts work, as evidenced by the change in workforce makeup over the last 25 years. Inclusion of women and minorities in the operations of a broadcast station or cable system does make a positive difference a difference that strengthens not just the companies that they serve, but also the country at large. "&0,l(l(,,0*"  Xt-(  SEPARATE STATEMENT OF MICHAEL K. POWELL #C\  P6QɓP##XP\  P6QyoXP# lU  X -4 LY@4 <DL!,kURe:Review of the Commission's#XP\  P6QyoXP# Broadcast and Cable Equal Employment Opportunity Rules and Policies and Termination of EEO Streamlining Proceeding (MM Docket Nos. 98204 and 9616).(# ,kU(# ,kU(#  X\ -4 <DL!4 <DL!I fully support this NPRM which looks for ways to revise the equal employment  X9 -opportunity rules to be consistent with the holding of the D.C. Circuit in Lutheran Church. It is important that we make such an effort. As a nation, we must be conscious of the barriers that exist for newcomers who wish for the opportunity to be full participants in the information age. If one believes, as I do, that the Constitution is not a complete bar to expanding opportunities for minorities and women, then we should not be afraid to forge ahead in search of effective, judicially sustainable tools no matter how difficult it might be to navigate a successful path. I wish to say a word about the basis on which I enthusiastically endorse our present effort. Individuals that operate broadcast facilities pursuant to a license they obtain from the government (in effect from the people of the United States), must do so in the public interest. And, it is our statutory charge to ensure that they do so. The venerable public interest standard is, to my mind, vague and expansive and too often allows for excessive government intrusion, if not outright mischief. Over the years, there has been hot debate as to what the standard should encompass. I personally have often urged the adoption of guiding or limiting principles to constrain the standard's invocation. Nonetheless, of this I am sure: If the public interest means anything at all it cannot possibly tolerate the use of a government license to discriminate against the citizens from whom the license ultimately is derived. Discrimination is an insidious legacy that has unquestionably denied certain citizens equal opportunity to savor the fruits born by this great country. No one is entitled to rewards they did not earn. No one is entitled to jobs for which they are not qualified. But, they are entitled to an equal opportunity to vie for those rewards and to compete for those jobs. This NPRM suggests doing nothing more than that. I recognize the genuine concern and anxiety with socalled "affirmative action" programs. To many, some of these programs have had the effect of mandating racial or gender equilibrium, under the banner of "diversity," to the detriment of able members of the majority. The courts have shared that concern and acted to curtail many of these programs. Nonetheless, I affirmatively believe that the courts and the Constitution they interpret continue to abhor discrimination and sanction minimally intrusive programs designed to vigilantly guard against it. This explains the continued viability of Title VII and the Civil Rights Acts and, I believe, explains the programs we suggest today."&1,l(l(,,'"ԌEqual opportunity can only be achieved if all individuals are given an equal chance to develop the skills and experiences necessary to compete effectively for those opportunities. I think this is why our society, and the courts, have often focused so heavily on ensuring that minorities and women get fair access to education. I am somewhat dubious of the strained proposition in this NPRM that minorities and women in low level positions measurably and directly advance our goal of program diversity. However, the probability of greater diversity in programming is advanced if there is a greater stable of senior executives and owners working in the field. Our proposed EEO rules focus on increasing the possibility that more minorities and women get the skills and experiences they will need to fairly earn the rewards of the industry, and the qualifications they need to effectively compete for positions of influence. This, more than anything, will strengthen the probability of a more diverse medium. Moreover, and importantly in the eyes of the courts, I believe efforts that focus on greater opportunity for developing skills and experience is likely to dampen the need or the impulse to mandate diversity through structural means that the have proven so objectionable. "2,l(l(,,"  X- IConcurring Statement of Commissioner Harold W. FurchtgottRoth In the Matter of Review of the Commission's Broadcast and Cable EEO Rules and Policies and Termination of the EEO Streamlining Proceeding, MM Docket No. 98204,  Xt-MM Docket No. 9616 I do not oppose the issuance of a Notice of Proposed Rulemaking (NPRM) to seek comment on, among other things, the statutory authority for, and the constitutional feasibility  X-of, employment regulations for broadcasters. For one thing, the D.C. Circuit in Lutheran  X-Church expressly contemplated that we take up the question of statutory authority for our nondiscrimination rule. I cannot at this time, however, support the unnecessarily broad conclusions and the underlying reasoning contained in this item, or the expansive discussion of social policy set forth in the introduction. As I have explained in other contexts, there are many hurdles to clear on this legal  X -track before we can adopt sound EEO rules. See In the Matter of Suspension of Requirement  X -for Filing of Broadcast Station Annual Employment Reports and Program Reports (released September 29, 1998). Among them is the necessity of showing a real, not just presumed, connection between the race or gender of station employees and the "viewpoint" that is  Xo-ultimately expressed on the air. Nothing in this NPRM suggests that we have any such record, and yet the NPRM concludes that the contemplated rules would indeed further the  X)-goal of creating "varying perspectives," supra at page 2, on the air.  X- In addition, while it is true that the holding in Lutheran Church did not address and thus does not prohibit pure recruiting rules, it is not necessarily settled law that such rules are  X-wholly free of Equal Protection implications, as the NPRM argues. See supra at para. 21. At  X-least arguably, a person is "treated unequally" within the meaning of Adarand if they are not recruited for a job because of their race, while others are. Certainly, the Supreme Court has never suggested that the meaning of "racebased decisionmaking" changes depending on which particular stage of the employment process firing, retirement, promotion, hiring, interviewing, applying, or recruiting is at issue. I intend carefully to review the cases in this area before reaching any conclusions. Furthermore, at this juncture the giving of notice of a proposed rulemaking I would not reach the tentative conclusions that we have statutory authority to issue either an  XG-antidiscrimination or a recruiting rule. See supra at paras. 25, 31. To my mind, this is an open question, and one on which I will be very interested in receiving comment; indeed, I  X -encourage commenters to address this question.  X|"-  ԍ#Xj\  P6G;yoXP#To the extent one could conclude that the Commission possesses statutory jurisdiction to   ladopt employment regulations, I would be interested in receiving comment on how such  XN$-  ijurisdiction could be logically limited to broadcasters per se, as opposed to applying to all classes of Commission licensees. I thus reserve judgment on this question, as well as the validity of the arguments pressed in support of authority in this NPRM, until we issue a final order."!36,l(l(,,e""ԌFinally, I would not reach the tentative conclusion that, notwithstanding the decision in  X-Lutheran Church, the Commission may continue to require the filing of race and gender  X-employment statistics. See supra at para. 47. I likewise withhold judgment on that issue.