Broadcasters, Civil Rights Groups Disagree on Constitutionality of EEO Proposals

The FCC should reduce equal employment opportunity filing obligations rather than accede to diversity group calls for stiffer enforcement, said broadcasters, NAB, NCTA and America’s Communication Association in reply comments posted through Tuesday in docket 19-177. Broadcast opponents said stiffer EEO rules would likely be unconstitutional, but diversity groups such as the Multicultural Media, Telecom and Internet Council and the Leadership Conference on Civil and Human Rights disagreed.

Collecting and using EEO data in investigations of EEO violations isn’t “constitutionally controversial,” said a joint filing from MMTC, the NAACP, Asian Americans Advancing Justice and numerous other civil rights groups.

Enhancing EEO rules to increase enforcement is likely to increase the burden on broadcasters and invite a constitutional challenge to the rules, which have never been tested in court, said a joint filing from some state broadcast associations. “Imprudently tacking these proposals to the current EEO Rule -- a rule that has never been subjected to judicial review -- is the equivalent of strapping weights to it and tossing it into the judicial ocean to see if it can survive constitutional scrutiny,” the state associations said. “Encouraging a court to overturn the entire EEO Rule is a poor strategy for promoting diversity in broadcast employment.” The current rules “already flirt with the edge of constitutionality,” NAB said.

The proposed changes wouldn’t be unconstitutional because they “wouldn’t treat members of any race or either gender differently from others because of their race or gender,” said the joint filing from civil rights groups. “There are neither constitutional nor statutory barriers to reinstating demographic employment reports,” said the Leadership Conference filing. “Aggressive, pro-active federal leadership” is “manifestly required” to combat hiring discrimination, said the civil rights groups.

Numerous broadcasters said there’s no sign the current EEO filing requirements prevented discrimination, or that new rules would do so. There's no evidence that “current FCC documentation and recordkeeping requirements have either reduced discrimination, or led to increased diversity, in the broadcast station workplace,” said a joint filing from 82 broadcasters, including The Cromwell Group, Butler Radio and Heartland Communications. The FCC should “reassess its current documentation and paperwork approach to nondiscrimination and employment diversity.” The agency should exempt small broadcasters from EEO audits, said NAB. A small station exemption would reflect the realities of the modern broadcast marketplace, said a joint filing from Clarke Broadcasting, Galaxy Communications, Golden Isles and HEH Communications. The agency should also ensure that additional regulations don’t unduly burden smaller cable operators, said ACA.

Both ACA and NCTA said the FCC shouldn’t increase regulatory burdens on cable providers. Cable companies already must abide by many other federal diversity rules, said NCTA. “There is therefore no need for the Commission to adopt new requirements or expand its current practices.”