Friday, April 17, 1998

FCC takes hit in quota ruling

The Federal Communications Commission has been insisting on racial hiring quotas at radio and TV stations for about 30 years, while saying they weren't quotas at all.

And it has been pursuing its threatening course on the ground of diversity, without ever quite explaining what it means.

Now, however, the U.S. Court of Appeals in the District of Columbia has said that a quota is a quota, even if the FCC wants to put it more softly and euphemistically by saying that employees must reflect the proportion of minorities in a community.

The court has said, too, that the FCC cannot justify a system of racial preferences by arguing only that it promotes diversity in staffing and programming. Without a lot more elucidation, it's not clear that this diversity is in the public interest, the court said.

The case at hand involves two Missouri radio stations owned by the Lutheran church. The NAACP filed a complaint that the hiring record didn't meet FCC requirements, and the FCC ruled in the NAACP's favor.

The owners argued their purpose was to air classical music and Lutheran doctrine and that they had had little luck in finding minorities to carry out those tasks.

Under the First Amendment, the owners also argued, a religious organization should be permitted to hire only the faithful. The radio stations are at a Lutheran seminary, and most employees are seminarians.

The Lutherans have won. In fact, the court's decision went further than the Lutherans had sought by voiding the FCC racial hiring requirement.

But while the Lutherans will not now have to pay a $25,000 fine or turn in regular employment reports to the FCC, they are out $1.5 million in legal fees and were disallowed purchase of a third radio station because of the litigation. The FCC has said it would not exercise its power to yank a license if good faith efforts were being made to comply with its dictates, but the power has been there as a constantly implied punishment.

In defense of the FCC, spokesmen say that minority employment at radio and TV stations in the land has gone from about 9 percent to almost 20 percent since the hiring rules were put in place.

But the culture has changed in that time, and many industries have vastly improved their minority representation during that period without any federal mandate.

At any rate, the end no more justifies the means than if the FCC had achieved these numbers by breaking the legs of recalcitrant owners, and the FCC should never have had a power so inconsistent with free speech in the first place.