In Re Commissioners
Statements Concerning Commission Action of October 27, 1972 on
Pennsylvania and Delaware Broadcasting Stations Renewals
FEDERAL COMMUNICATIONS COMMISSION
38 F.C.C.2d 158
NOVEMBER 3, 1972
JUDGES:
OPINIONS BY COMMISSIONERS NICHOLAS JOHNSON AND HOOKS IN PENNSYLVANIA-DELAWARE RENEWAL ACTION
OPINION:
[*158] On October 27, 1972, the Commission announced action on renewal applications of 28 Pennsylvania and two Delaware broadcasting stations, which the Commission had queried on employment practices.
CONCURBY: JOHNSON (IN PART); HOOKS (IN PART)
DISSENTBY: JOHNSON (IN PART); HOOKS (IN PART)
DISSENT:
OPINION OF COMMISSIONER NICHOLAS JOHNSON CONCURRING IN PART AND DISSENTING IN PART
Some four years after the enactment of the Civil Rights Act of 1964, the Federal Communications Commission promulgated equal employment opportunity regulations of broadcasters. Nondiscrimination Employment Practices of Broadcast Licensees, 13 FCC 2d 766 (1968); Nondiscrimination Employment Practices of Broadcast Licensees, 18 FCC 2d 240 (1969); Nondiscrimination Employment Practices of Broadcast Licensees, 23 FCC 2d 430 (1970).
By August of 1972, the Commission finally decided it ought to make an effort to enforce those regulations. See Pennsylvania and Delaware Renewals, FCC 2d (1972).
In light of today's action -- some eight years after the Civil Rights Act -- the majority's effort has proved to be, at best, tokenism.
In our August decision, we directed the Broadcast Bureau to send equal employment opportunity inquiry letters to 30 broadcast stations in Pennsylvania and Delaware. Those letters were directed to stations which had ten or more employees and which:
(1) had no women employees, or showed a decline in the number of women employees from 1971 to 1972, or
(2) were in areas with a minority population of 5% or more and employed no blacks or showed a decline in the number of black employees from 1971 to 1972.
The purpose of these letters was to solicit from the stations their reasons for their employment patterns -- to help us determine whether [*159] the stations might be engaged in the sort of discriminatory employment practices against which our regulations are directed.
I had considerable reservations about the standards employed by the Commission in selecting stations which merited letters of inquiry. See my concurring and dissenting statement in the Pennsylvania and Delaware Renewals decision, FCC 2d at . It felt that those letters -- the sole purpose of which was informative rather than punitive -- should have been sent to many more stations, that we should have concerned ourselves not only with the number of women and minorities employed by a station, but also with the positions held by such employees.
The majority, of course, felt otherwise, and I concurred in their gesture on the theory that some remedial action is generally preferable to none at all. Insofar as this proceeding is concerned, however, I have serious doubts about the validity of that theory. For though it appears to have scrutinized the employment practices of these stations, the majority has, in fact, emphasized form over substance.
The stations to which inquiries were directed have responded. Predictably, virtually all of them have denied any discriminatory practices. Somewhat dubious about what all this has accomplished, the majority issues outright renewals to 14 of the 30 stations. It renews four more with the direction that they should inform the Commission regarding implementation of their EEO programs. It takes no action with respect to eight stations the renewals of which are being challenged by petitions to deny. And it defers the renewals of four other stations the initial responses of which it considers inadequate.
The majority grants these renewals, not because it is convinced that these stations have not engaged in discriminatory employment practices, but because it does not know what else to do. One wonders why, at this late date -- eight years after passage of the Civil Rights Act of 1964 -- the Federal Communications Commission has not yet figured out how to prevent unlawful discrimination by our licensees. One reason, of course, is that until now it has not even tried.
But one can also fairly ask, why, in the absence of a program to prevent discriminatory practices, the Commission simply throws up its hands and grants these stations their license renewals. I would have thought that if we are not to put them in hearing we would, at the very most, grant short-term renewals until we could arrive at some intelligent approach. Instead, we send out letters of inquiry based on hard data which obviously evokes our suspicion, only to accept -- in toto -- the facile responses of the stations.
Perhaps even more serious is the majority's rather cavalier determination not to designate for hearing even the single station which has failed to satisfy us of its lack of discriminatory conduct. The Commissioners concede that there may well be a reason to believe that WNPV has discriminated against women. WNPV admitted, in its response to our inquiry, that -- notwithstanding its low percentage of women employees -- it had advertised in Broadcasting Magazine for an announcer with the specification that all applicants must be male! Can we imagine the justifiable indignation if it had advertised "only white folk need apply"? What's the difference -- except that one ad is [*160] racist and the other is sexist? The law covers both -- even though many of the white male establishment are still guffawing over their "women's liberation" jokes. In view of this unabashed concession, I would have thought that a hearing would be in order.
The majority, however, does not like hearings. Though such hearings may be the only means of properly determining the facts in a given case, this Commission views hearings as punitive. As a result, we normally make our renewal decisions in a factual vacuum. This proceeding is an excellent example of that phenomenon.
Though our Broadcast Bureau has some reservations about continuing our letter of inquiry program with respect to future renewals, the majority -- largely at the request of Commissioner Benjamin Hooks, the FCC's first black Commissioner -- has agreed at least to make EEO inquiries of several stations in Washington, D.C., Maryland, Virginia, and West Virginia. I concur in that part of the majority's decision because I still believe that the very fact of these letters may achieve some, very minimal, needed results. For example, WNPV -- whose apparent indifference to sex discrimination is matched by an indifference to minority groups employment as well -- claims to have initiated an affirmative action program for recruiting minority applicants as the result of our letter of inquiry.
My disagreement lies in the majority's refusal to put teeth into its equal employment opportunity policies. Hopefully, Commissioner Hooks will be able to rectify this situation as the FCC considers a more adequate EEO program for, as always, "the future." Meanwhile, our current policy is, in general, a joke.
STATEMENT OF COMMISSIONER BENJAMIN L. HOOKS, CONCURRING IN PART; DISSENTING IN PART
In Re: Renewal of Broadcast Licenses in Pennsylvania and Delaware
By deferring further the renewal of
several broadcast station licenses pending a deeper review of their Equal
Employment Opportunity programs, the Commission is reasserting its commitment
to better minority hiring practices. Careful scrutiny of licensee
practices in this area elevates the consciousness level on the subject and I
believe that the deferral letter approach has been salutary in that
respect. It has also identified pockets where more attention is
needed. n1
n1 The situation in York, Pennsylvania, is an
excellent example of a glaringly troublesome state of affairs brought to light
by this deferral exercise. The responses submitted by six York broadcast
stations with a combined workforce of 91, in a city that is 13% Black, indicate
0 Black broadcast employees.
My only qualm is that, in addition to those four licensees whose renewals remain in abeyance, I would have included a number of other stations whose surface responses did not seem to me to reflect more than token compliance over the past three years.
While license renewal deferrals may not be the ideal way in which to approach or implement the Commission's EEO rules and policies, I must consider meritorious any measure taken by the Commission evincing sincerity in the matter of nondiscrimination until we adopt a systematic method to deal with this issue on a day-to-day basis so as to avert a renewal crunch.