Los Angeles Women's Coalition for Better Broadcasting v. Federal Communications Commission , 584 F.2d 1089 ( 1978 )

Opinion for the court per curiam.

Dissenting opinion filed by MacKINNON, Circuit Judge.

PER CURIAM:

Petitioner, the Los Angeles Women’s Coalition for Better Broadcasting (WCBB), filed with the Federal Communications Commission petitions to deny the renewal applications of three Los Angeles television licensees. The Commission rejected the petitions, finding that WCBB had failed to raise any substantial and material questions requiring a hearing on the renewal applications. Petitioner then sought review in this court. We deferred our consideration of these challenges pending the decision of this court en banc in Bilingual Bicultural Coalition on Mass Media v. FCC, (D.C.Cir. No. 75-1855, decided May 4, 1978) (Bilingual). We now remand the records in these cases for further consideration by the Commission in light of the Bilingual decision.

Petitioner’s primary claim before the Commission and this court has been that the three licensees involved should not be granted immediate renewal under the applicable public interest standard, 47 U.S.C. § 309(a) (1970), because of substantial underemployment of women in their work forces. In all three cases the percentages of women employed by the licensee during the license term ¹ are substantially less than the percentage of women in the Los Angeles Standard Metropolitan Statistical Area (SMSA) work force; with respect to two of the licensees, KTTV and KCOP, the percentages of women employed in the upper four job categories most closely related to a station’s actual operations and programming are less than 15 percent of the percentage of women in the SMSA work force. It is petitioner’s claim that, at the very least, further inquiry is required to determine the reasons for these disparities and to shape appropriate sanctions or reporting requirements to redress the underlying problems.²

In Bilingual this court emphasized that the “public interest is not served by licensees who engage in intentional employment discrimination.” Slip op. at 13. Such practices “put seriously into question a licensee’s character qualifications to remain a licensee: intentional discrimination almost invariably would disqualify a broadcaster from a position of public trusteeship.” Slip op. at 14. Moreover, even apart from the question of past intentional discrimination, underrepresentation of certain groups in a licensee’s work force, particularly in the professional and operations categories where decisionmaking responsibility is located, may result in programming which fails adequately to serve the community. Thus we recognized as well in Bilingual the responsibility of the FCC “to ensure that programming reflects minority interests,” a responsibility which necessitates invocation of “prospective, administrative sanctions — short-term license renewals and license renewals conditioned on reporting— which enable [the FCC] to monitor broadcasters’ progress in recruiting and hiring minority workers.” Id. (emphasis in original; footnote omitted).

This is not to say that further inquiry or sanctions are appropriate whenever there is any disparity between the available workforce in the SMSA and the licensee’s own workforce. We stated in Bilingual:

Evidence of minor statistical disparities between the available minority workforce and a station’s employment, standing alone, in most cases will not warrant a hearing. Yet evidence of substantial statistical disparity — evidence that a licensee’s minority employment is outside the “zone of reasonableness” — while it may not in itself necessarily require resolution at a hearing, should at least put the FCC on notice that more information is required before the license renewal application can be granted. * * *

Slip op. at 15-16. (first emphasis in original, last emphasis added; footnotes omitted).³

Where further information is needed the FCC may either conduct its own inquiry or afford the petitioner an opportunity to conduct discovery. If it chooses the first alternative, however, the Commission must ensure that the petitioner has a meaningful opportunity to examine and comment on the information received. As we stated in Bilingual, “The full report of the Commission’s investigation, including all evidence it receives, must be placed in the public record, and a stated reasonable time allowed for response and rebuttal by petitioners. These procedures will permit meaningful participation by petitioners without necessitating potentially burdensome discovery.” Slip op. at 26.

The cases before us now were decided by the Commission before our decision in Bilingual. Because we believe the Commission should have the opportunity, in the first instance, to apply the principles we announced and clarified in Bilingual to the facts of these cases, we remand the records before us now to the Commission for further consideration in light of that decision.

So ordered.

1 . As to post-term improvements, of which there is some evidence in these cases, it should be noted that while post-term statistics “may be of some relevance * * * we have never accepted, and we do not here accept, the proposition that license renewals may be granted in reliance on post-term statistics alone. To permit exclusive reliance on such statistics would be to allow licensees to discriminate throughout the term, confident that they could secure renewal by hiring minority workers after the term had expired. We would not permit this; we trust the FCC would not permit it either.” Bilingual Bicultural Coalition on Mass Media v. FCC, (D.C.Cir. No. 75-1855, decided May 4, 1978) n.42 (1978) (en banc) (Bilingual) (emphasis in original).

2 . In all these cases WCBB’s petitions were denied subject to any action the Commission might deem appropriate as a result of Equal Employment Opportunity Commission (EEOC) or judicial determinations in cases of specific charges of employment discrimination by the licensee then pending before EEOC. As we stated in Bilingual, supra note 1, “Evidence of actual discriminatory conduct in most cases will present a substantial and material question of fact warranting a renewal hearing.” Slip op. at 15. In these cases there is no indication, of any final disposition on the charges involved.

3 . This court has not required employment and population percentages to be in exact parity; we have found it sufficient if the licensee’s employment figures fall within a “zone of reasonableness.” Bilingual, supra note 1, slip op. at 11 n.15. The FCC has stated a rule of thumb that a licensee’s minority or women employment is within this zone if it “ ‘reflects at least 50 percent of [these groups’] respective percentages in the relevant work force and 25 percent of such percentages in the station’s upper-four jobs.’ ” Id., Slip op. at 16 n.33. According to this rule of thumb, two of the three licensees challenged here — K'iTV and KCOP — fail to fall within the zone of reasonableness with respect to their employment of women. Moreover, the zone of reasonableness must contract over time, id., and substantial disparities, such as those claimed with respect to all three licensees, may necessitate further inquiry and action even if falling slightly short of the rule of thumb definition of reasonableness. This is particularly true where, as is alleged here, recruitment efforts are not in fact aggressive and result-oriented; where similar recruitment efforts have failed to produce significant or lasting improvements in the past, at a minimum Commission monitoring may be necessary to ensure that there will indeed be improvements in the future, as the zone of reasonableness contracts.