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Court KOs FCC Hiring Requirements

April 15, 1998

WASHINGTON (AP) _ A 30-year government effort to bolster racial diversity in TV and radio employment was dealt a major blow when an appeals court declared the FCC’s hiring requirements unconstitutional.

The Federal Communications Commission has not decided whether to appeal Tuesday’s decision by the U.S. Court of Appeals for the District of Columbia.

The court said the FCC had failed to explain how its regulations for equal employment opportunities served the public interest _ the standard on which the agency based the rules in 1968. ``The government’s formulation of the interest seems too abstract to be meaningful,″ the judges concluded in holding the rules unconstitutional.

The ruling was made by Judges Laurence Silberman, David Sentelle and Stephen Williams _ all appointed by President Reagan.

The ruling did not address FCC policies designed to foster employment of women, but broadcast attorneys said it could make those rules vulnerable to legal attack, too.

``Our rules have opened doors for minorities and women and have led to more minorities and women in front of and behind the television camera and inside and outside of the radio booth,″ said FCC Chairman Bill Kennard, the first black to hold the position. ``Our nation is diminished by the decision.″

Supporters credit the regulations with boosting minority employment in broadcasting. The FCC said 19.9 percent of all full-time employees in TV and radio are minorities, up from 9.1 percent in 1971.

``It’s a bullet to the heart of the FCC’s EEO rules,″ said Andrew Schwartzman, president of the Media Access Project law firm. ``Over the long term it will affect the number of minorities working in the industries, particularly at the executive levels, it will affect minority ownership and it will undermine progress in racial harmony in American society as a whole,″ he said.

Minorities own only 2.8 percent of the nation’s TV and radio stations. Just last week, Kennard called upon the broadcasting industry to help him improve this figure.

The NAACP, which defended the equal-employment requirements in court, had no comment on the ruling.

The case was brought to court by the Lutheran Church-Missouri Synod, which holds licenses for two noncommercial religious radio stations in Clayton, Mo.: KFUO-AM and KFUO-FM. The church was appealing an FCC ruling that it violated equal-employment regulations by making insufficient efforts to recruit minorities.

Barry Gottfried, attorney for the church, said he does not anticipate the church will alter its hiring practices because of the ruling.

The FCC had argued that its regulations promote minority employment and bolster diversity in programming. The court concluded: ``The commission never defines exactly what it means by `diverse programming.‴

The FCC regulations have required stations to hire minorities at levels that reflect the racial composition of local communities’ work forces; require stations to establish affirmative action programs to locate, recruit and train minorities; and require stations to publicly report detailed employment information.

The court’s decision did not address another FCC regulation that forbids stations to intentionally discriminate in hiring.

Broadcasters must abide by the FCC’s requirements to receive or renew a TV or radio license. Violations can result in fines and, in severe cases, loss of licenses.

The National Association of Broadcasters had no comment on the ruling.

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