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 STATEMENT  OF  COMMISSIONER  KEVIN  J.  MARTIN 
 APPROVING  IN  PART,  CONCURRING  IN  PART 


 Re:  Review  of  the  Commission’s  Broadcast  and  Cable  Equal  Employment  Opportunity  Rules  and  Policies,  Third  Report  and  Order  and  Fourth  Notice  of  Proposed  Rulemaking 
 Every  citizen  should  have  the  opportunity  to  advance  professionally  based  on  his  or  her  own  merit,  regardless  of  race,  religion,  or  sex.  Discrimination  in  the  workplace  is  anathema  to  this  principle,  and 
 Congress  has  charged  us  with  prohibiting  such  discrimination  in  the  broadcast  and  cable  industries. 
 I  strongly  support  equal  employment  opportunity  principles,  and  I  supported  our  most  recent  attempt  to  craft  EEO  rules  that  would  be  both  effective  and  constitutional.  I  hope  we  have  succeeded. 


 Our  past  attempts,  however,  were  not  so  successful;  the  courts  struck  them  down  on  constitutional  grounds  twice.  The  most  recent  court  case  vacated  our  second  attempt  at  an  EEO  rule  because  it 
 determined  that  what  was  known  as  “Option  B”  created  race-  based  classifications  that  did  not  survive  strict  scrutiny.  1  That  court  specifically  mentioned  the  Annual  Employment  Report  at  issue  here,  which 
 required  stations  to  identify  each  employee  by  race  and  sex.  2  Although  the  court  did  not  pass  on  the  constitutionality  of  this  requirement,  it  did  vacate  the  entire  EEO  rule,  including  this  provision.  3  Because 
 the  court  was  skeptical  of  race-  based  classifications,  I  have  concerns  with  reinstating  the  requirement  that  parties  classify  employees  in  such  a  manner  and  file  the  information  with  us  on  a  regular  basis.  I  would 
 have  less  concern  if  the  data  were  supplied  to  us  anonymously.  If  our  goal  is  truly  only  to  monitor  industry  trends  and  not  to  use  the  data  (or  allow  others  to  do  so)  to  determine  EEO  compliance, 
 anonymous  information  would  seem  to  fulfill  that  need  while  eliminating  the  constitutional  concern. 
 I  therefore  am  concerned  that  we  are  adopting  this  form  without  first  determining  whether  the  information  may  be  submitted  anonymously. 


 1  MD/  DC/  DE  Broadcasters  Association  v.  FCC,  236  F.  3d  13,  rehearing  den.  253  F.  3d  732  (D.  C.  Cir.  2001), 
 cert.  denied,  122  S.  Ct.  920  (2002). 
 2  See  236  F.  3d  at  17  (noting  that  “the  new  EEO  rule”  included  the  filing  of  annual  reports  which  require  stations 
 to  identify  each  employee  by  race  and  sex). 
 3  Id.  at  23  (determining  that  “the  rule  is  vacated  in  its  entirety”). 
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