Concluding that “inartful drafting is not the same as
ambiguity,” the U.S. Court of Appeals for the District of
Columbia Circuit found in favor of National Public Radio in an appeal
from the Commission's prior determination that noncommercial
educational (NCE) stations would be required to take part in an auction
if they decided to file for non-reserved (commercial) frequencies.
The Commission, in response to questions previously raised by NPR,
conducted a limited rulemaking and issued its determination that its
view of the Balanced Budget Act did not exempt NCE stations from
auctions involving commercial allocations. The Commission took the
position that if an NCE applicant filed for a commercial channel, then
it would be subject to an auction like any other applicant. The Court's
conclusion was that the language in the Balanced Budget Act was clear
enough that NCE applicants were not required to submit to an
The Court's decision places a cloud over the FCC's planned December
FM channel auctions. The Commission most likely will come up with a
hybrid point system to cover comparisons among NCE and commercial
applicants. However, a full-blown rulemaking will be required to effect
such a plan. This time-consuming process will be completed next year at
Another alternative is to ask Congress for a legislative remedy. The
general thought is that the Hill might not be sympathetic to NPR since
NPR's position could cost the government auction fees.
This raises a question as to whether the December FM auctions will
go forward as scheduled. If auction applications are invited in
September as planned, the FCC would have to postpone the bidding for
any channel that attracts even one NCE applicant.
EEO rules down but not out
The U.S. Court of Appeals in Washington has struck down the FCC's
2000 version of the EEO rules for a second time. In 1998, the Court
found an earlier version of the EEO rules unconstitutional, stating
that those rules pressured stations to grant preferences to minority
applicants by requiring them to compare the percentages of minorities
on their staffs with the local labor force.
In 2000 the FCC adopted completely new EEO rules. The new rules
offered two options. Option A was a complex set of recruitment
requirements, which did not specifically reference minorities. Option B
allowed licensees to design their own recruitment plans, but required
record keeping on minority applicants and hires.
In January of this year, the U.S. Court of Appeals found Option B
unconstitutional because it focused more on results than efforts by
requiring stations to report a job applicant's race. The Court held
Option B was not narrowly tailored to further a compelling governmental
interest in preventing discrimination and was, therefore,
unconstitutional. The Court also stated that it was impossible to sever
Option B from Option A in order to allow Option A to remain in place,
stating that the reason the FCC adopted Option B was too intertwined
with that for Option A.
In February, in response, FCC Chairman Powell, with support from a
majority of the FCC Commissioners, asked the Court as a whole, i.e., a
panel of all judges on the Court rather than the normal three-judge
panel, to reconsider the decision and the Court agreed. On
reconsideration, however, the Court again held the EEO rules
The only option for further appeal would be the U.S. Supreme Court.
The FCC has not indicated an interest in fighting that battle. Instead,
Chairman Powell has stated publicly he would like the other
Commissioners to join him in proposing rules more likely to be found
constitutional. A new proposal could surface by early next year.
Shortly after the first decision, the FCC suspended its EEO rules
while awaiting the Court's reconsideration. Assuming no U.S. Supreme
Court appeal is taken, the EEO rules will officially terminate when the
U.S. Appeals Court's second decision becomes final. In light of the
possibility of new EEO rules, however, it may be advisable for stations
not to dismantle their EEO record-keeping systems. While no penalties
could be imposed for suspending record-keeping during the time no rules
are in effect, it may be administratively more difficult to restart
than to keep systems in place pending the outcome of any future
Harry Martin is an attorney with Fletcher, Heald & Hildreth,
PLC., Arlington, VA. E-mail email@example.com.
Annual regulatory fees are due for commercial radio stations between
September 10 to 21, 2001. Fee payments are made to Mellon Bank in
Pittsburgh and must be accompanied by a signed FCC Form 159.
October 1 is the filing deadline for biennial ownership reports for
stations in the following states and territories: Alaska, Florida,
Guam, Hawaii, Iowa, Mariannas, Oregon, Puerto Rico, Samoa and Virgin
October 10 is the deadline for placing July through September
issues/programs lists in stations' public files.