The owner of an Oregon-based Christian radio and TV broadcasting company has asked a federal appeals court to toss out a newly resurrected federal regulation he says will be used to fuel attacks on religious broadcasters with the intent of ultimately indirectly forcing them to abide by the government's preferred hiring practices.
The Dove Media Inc., of Medford, Oregon, filed a petition for review in the San Francisco-based U.S. Ninth Circuit Court of Appeals, seeking a determination that the Federal Communications Commission overstepped the bounds of its authority in resurrecting the so-called Broadcast and Cable Equal Employment Rules and Policies.
Under the resurrected rule, the FCC will reinstate the requirement that all licensed broadcasters employing five or more people must file a form known as Form 395-B.
This form requires the subject broadcasters to tell the FCC the race and sex composition of its workforce. While the reporting rule has been dormant for 30 years, the FCC said it was restoring the rule to promote diversity in U.S. broadcasting companies.
The rule change was passed 2-1 in February, with FCC Commissioners Geoffrey Starks and Nathan Simington voting in favor. Commissioner Brendan Carr opposed and dissented.
In comments supporting the rule change, Starks said the resurrection of the rule was needed to ensure American broadcasters better represent the demographics and interests of the people to whom they are broadcasting.
"Quite simply, today we reinstate a longstanding, statutorily-mandated requirement to collect workforce diversity data from broadcasters," Starks said in comments posted endorsing the measure.
"We know how critical it is to have diversity in our media organizations. It’s clear – a successful media organization serves its viewers, listeners, and readers. And an organization does that by ensuring that its employees, its decisionmakers, reflect those viewers, listeners, and readers, and can speak for and to them."
In dissent, however, Carr said the purpose of the rule change was rather to force broadcasters to comply with federal hiring desires and to shame those who defy them. Carr noted the FCC will not merely collect the hiring and employment data, but will publicly post the hiring data in a "race and gender scorecard" for each licensed broadcaster.
"In doing so, the FCC caves to the demands of activist groups that have worked for years and across different industries to persuade the federal government to obtain - and most importantly publish- this type of data about individual businesses," Carr said in his published comments. "This is no benign disclosure regime. The record makes clear that the FCC is choosing to publish these scorecard for one and only one reason:
"To ensure that individual businesses are targeted and pressured into making decisions based on race and gender."
Carr further noted that prior attempts by the FCC to impose similar "shaming" regulations have been shutdown by court, when challenged on constitutional grounds.
In the new petition, Dove Media indicates it, too, believes the FCC rule is unconstitutional and illegal.
Dove Media's attorneys with the non-profit legal organization, the Pacific Legal Foundation, said in a statement that the new rule amounts to "a blatant end-run around the Equal Protection Clause" of the U.S. Constitution's Fourteenth Amendment and a violation of the so-called "nondelegation doctrine," which grants only to Congress the power to make laws.
According to the Pacific Legal Foundation, the Dove Media company has broadcasted since 1983 when founder Perry Atkinson "took a leap of faith" and sold his house to buy a low-power radio station in Medford.
Today, Dove Media operates nearly three dozen Christian radio and TV stations and streaming services, reportedly broadcasting daily to more than 6 million people.
The Pacific Legal Foundation asserts the resurrected FCC rule now places a new, illegal obstacle to Dove's ability to continue operating: "a federal agency's campaign to publicly shame companies that don't follow its preferred discriminatory employment practices."
"The Communications Act of 1934 gave the FCC authority to regulate broadcasting, not to enforce what amounts to race and gender quotas," the Pacific Legal Foundation wrote.
"Even if the reporting requirement were lawful, the FCC's attempt to impose race- or sex-based hiring quotas run afoul of the Constitution's Equal Protection guarantee, which forbids government discrimination on the basis of immutable characteristics such as race and sex. Broacasters' employment decisions are no exception," the Pacific Legal Foundation said.