Federal Communications Commission	FCC 24-18


DISSENTING STATEMENT OF
COMMISSIONER NATHAN SIMINGTON

Re: 	Review of the Commission’s Broadcast and Cable Equal Employment Opportunity Rules and Policies, Fourth Report and Order, Order on Reconsideration, and Second Further Notice of Proposed Rulemaking; MB Docket No. 98-204

Broadcast has a problem with minority engagement; broadcasters and their trade associations are the first to acknowledge this unfortunate reality.  Minority ownership and participation in broadcast has been dismal for years and remains so, not least of which due to Commission leadership's recent scuttling of the largest proposed minority-led purchase of a broadcast station group in history.  The Commission should be open to creative solutions to help improve minority participation in broadcast so that broadcast workforces reflect the communities that they serve.  So, directionally, I am aligned with my colleagues on efforts to improve minority participation by better understanding the causes of the issue, and by providing policy incentives to solve it.

Had the Commission’s Order today moved to collect and aggregate de-identified Form 395-B data from broadcasters for public disclosure, I would have agreed with the majority and voted to approve.  Had the Commission today moved to collect attributable Form 395-B data for private Commission review to aid in understanding the demographic contours of the broadcast marketplace and the impact of Commission policy thereon—more akin to the extant data collection practices of the Equal Employment Opportunity Commission—I would have agreed with the majority and voted to approve.  I joined one of my colleagues on the Commission in asking for the Order to be reframed to accomplish either.  Our suggested edits were rejected in favor of retaining the Order released today.  I cannot approve this Order because I do not think it is within our authority to implement: its claims to public interest supporting the public disclosure of attributable 395-B data are specious and undergirded by glassy legal punctilios.
Turning to authority: in both Lutheran Church-Missouri Synod v. Federal Communications Commission ('Lutheran Church') and MD/DC/DE Broadcasters Associations vs. FCC ('MD/DC/DE'), the central consideration of the D.C. Circuit in determining whether the Commission had violated the Fifth Amendment in its EEO policies was whether its practices, in fact, incentivized race-conscious hiring by pressuring a broadcast licensee to engage in such hiring.  To the Commission’s credit, the drafting of today’s Order evinces sensitivity to this issue.  It is true that, per this Order, the Commission will not officially consider a station's demographic employment profile in any application pertaining to its broadcast license.  It is true that, per this Order, the Commission will not mandate any particular demographic pattern in hiring in order to satisfy the Commission's EEO requirements.  Yet, like Frankenstein’s creature, the Commission's reanimation of Form 395-B comes at the cost of its fundamental ungovernability, viz.: public disclosure of attributable demographic employment data.  The ineluctable question therefore is: ought the Commission to anticipate that its rule requiring public disclosure of such data will pressure broadcast licensees to engage in race-conscious hiring practices?  If so, is the policy not vulnerable to challenge on constitutional grounds?

My colleagues today argue, in effect if not explicitly, that pressure to engage in race-conscious hiring from outside of the Commission by third parties predictably generated by means of Commission policy is legally nugatory.  The Order contends that, so long as broadcasters are not pressured by the Commission itself, pressure from third parties knowingly generated by an instrumentality of Commission policy lacks constitutional valence.  Further, the Order contends that concerns over public pressure are merely speculative.  I cannot say that I agree with any of that.

The public inarguably pressures every large firm for which employment data are available (and, indeed, even for those firms electing not to publicly disclose employment data) as it relates to “equity” in staffing decisions.  Responsive to these issues, some larger broadcasters already raise their hands and elect to disclose demographic employment data.  Yet a government policy mandating such disclosure, at a minimum, implicates Fifth Amendment guardrails around incentivizing race-conscious hiring practices, precisely due to the widespread and predictable social pressure of which this Commission is, obviously, aware.  While it may be true that contending with workforce demographics is a legitimate question of good corporate governance, it does not follow that a government mandate to disclose attributable demographic employment data automatically passes constitutional muster so long as the implementing agency takes no official notice of that data.  If, predictably, regulatees are pressured to engage in race-conscious hiring as a direct consequence of this Commission’s rules, I see no fine distinctions in the law as to the etiology of the pressure immunizing our decision today from constitutional scrutiny.
Were the Order subject to strict scrutiny in judicial review—it is at least possible that it will be—I am not convinced that the “collect and disclose” rules we implement today would survive constitutional challenge.  Adarand Constructors, Inc. v. Peña (‘Adarand’) and its progeny make it clear that the Commission may collect this data.  Yet while demographic data collection simpliciter does not subject governmental action to strict scrutiny, bear in mind that today’s Order is at pains to discuss the social ill at which collection and disclosure of attributable demographic employment data is intended to address: minority participation in the broadcast workforce.  In other words, when the effective goal of demographic data collection and disclosure is to affect the hiring behavior of regulatees (that is, to improve minority participation in the broadcast workforce), and when the only obvious modality of improvement afforded by disclosure of attributable demographic employment data not otherwise afforded by disclosure non-attributable data is public pressure, may the Commission still seek shelter beneath Adarand?

Even if strict scrutiny were not to apply, there is no requirement that the Commission take a maximalist position as to disclosure.  This Commission ought, as a prudential matter, to tread lightly where matters of suspect classification arguably are implicated.  That is especially true where, as here, the rules we adopt today invite comparison to actions taken by the Commission twice invalidated on Fifth Amendment grounds.

Turning to policy: even were the Commission not constitutionally forbidden from taking the step of public disclosure of attributable demographic employment data that it does today, it should not anyway, because little or no new information appropriate for national policy consideration by this agency will be revealed by its implementation.

Obviously, policy should rely on data: governmental collection and use of statistical data—subject to a variety of scientific infirmities though it often is—is foundational to modern regulatory rulemaking and lawmaking.  And, incontrovertibly, it is possible that the collection and use of demographic employment data can be used to aid in making rules and laws.  Of greater controversy is whether public analysis of policy-implicated datasets generates good rules and laws—especially as there are many a slip twixt analytical cup and regulatory lip—but let us grant it for argument’s sake.  It is in no way obvious that, for the purposes of crafting national policy, which is inherently macroscopic, there is a great enough delta in the informational value to the public data science community of demographic employment data that is attributable to individual stations compared to data that is de-identified so as to justify the publication of the former when the former is so constitutionally fraught.  So, as regards the publication of attributable demographic employment data: what policy good is left other than “name and shame” for station owners?  What is left other than the fully predictable application of public pressure on individual licensees that this Order waves off as speculative?  If the Commission’s collection of this data were aimed merely at informing policy, why take the additional step of disclosure we take today?
Because the public disclosure of attributable demographic employment data this Order implements predictably serves to increase pressure on broadcast licensees to engage in racially conscious hiring, in violation of the Fifth Amendment and as explained by the D.C. Circuit in both Lutheran Church and MD/DC/DE, and because I can find no other legitimate purpose for the publication of attributable demographic employment data, I dissent from the Order.

As to the Second Further Notice of Proposed Rulemaking, I see nothing that would vary my thinking as it relates to the collection and disclosure of Form 395-A data, and so I dissent from that portion of the item for identical reasons.
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