492 F.2d 656 | D.C. Cir. | 1974
Lead Opinion
Appellants challenge the Federal Communications Commission’s renewal of a broadcast license on the ground that the station’s employment practices discriminate against Mexican-Americans. Their appeal requires us to consider once again
I
On April 28, 1971, the Avco Broadcasting Company filed its license renewal application for WOAI-TV, San Antonio, Texas. The central assertion of appellants’ July 1 Petition to Deny was based on statistics:
Of the Station’s eighty-five (85) employees, only 12% are Mexican-Americans. In San Antonio where the total population is 830,000 and 48% of the population is Mexican-Ameriean, the Station has failed to achieve parity in employment of Mexican-Americans. . . . The record points to the conclusion that the*658 Station is practicing de facto segregation.2
Appellants’ Petition also alleged that when the station did hire Mexican-Americans, it chose those who did not belong to community organizations, relegated them to unimportant jobs, and prevented them from effectively representing their fellow Mexican-Americans.
Aveo’s Opposition to appellants’ Petition alleged that the station had not discriminated against hiring Mexican-Americans, but in fact had developed programs to insure fair treatment for all minority groups. Under one of these programs, for example, the station hired “qualifiable, but not qualified” Mexican-Americans for specific jobs and gave them job training.
Of these 13 employees, none were in the lower unskilled job categories; rather these employees occupied positions of responsibility and skill within the station’s operation. Spanish-sur-named Americans at WOAI-TV were employed in such jobs as Writer, and Investigative Reporter, Art Director, News Reporter and Photographer, Assistant Community Services Director, Stenographer, Broadcast Technician, Cameraman, and Film Clerk.5
All of these allegations were supported by an affidavit from the station’s General Manager. In addition, Avco submitted affidavits from four Mexican-American employees in which they asserted that their jobs were responsible ones and they were not restricted from reporting on matters of concern to the Mexican-American community.
On November 15,1972 the F.C.C. found that appellants had not raised “substantial and material questions of fact which established a prima facie case” for denying license renewal and therefore were not entitled to a hearing under the Communications Act.
II
Appellants present no evidence of refusals to hire individual Mexican-Americans, but rely instead on the disparity between the percentage of Mexican-Americans in the community and the percentage employed by the station. In Stone v. F.C.C. this court held that such a showing did not establish a prima fa-cie case for denying license renewal when the licensee had a policy of recruiting minority group members and placing them in responsible jobs.
The Commission is aware that statistics alone do not provide ideal evidence of discrimination. From Stone to the present case, it has insisted that groups challenging license renewals show “specific instances of discrimination or a conscious policy of exclusion.”
New approaches are clearly necessary. The Commission must consider how best to provide a fair and reasonable opportunity for those challenging license renewals to seek explanations for the underemployment of minority groups. Providing challengers with the power to take depositions might be considered. Perhaps even the .Commission itself would wish to scrutinize a station’s employment practices when a disparity between employment and population comes to light. Choosing the precise method of dealing with allegations of discrimination is, of course, a matter for the Commission. We note, for example, the recent creation within the F.C.C. of an Equal Employment Office designed to play a role in this area.
In the circumstances of this case we need not decide whether to remand for further proceedings in light of this opinion since, as a practical matter, a remand would serve little purpose — Av-co’s license, expires again in a few months.
Apart from the issue of employment statistics, appellants’ contentions are without merit. There is no basis for the claim that Avco must hire only
The Commission’s Memorandum Opinion and Order is
Affirmed.
. See Stone v. F.C.C., 151 U.S.App.D.C. 145, 466 F.2d 316 (1972).
. Petition to Deny at 19.
. The Petition included several other allegations not raised in this appeal.
. Opposition to Petition to Deny at 12.
. Id. at 11.
. Memorandum Opinion and Order, F.C.C. 72-1003, November 15, 1972 at 9. See also Communications Act of 1934, as amended, 47 U.S.C. § 309(d); Stone, supra, 151 U.S.App.D.C. at 150-152, 466 F.2d 316.
The F.C.C. found appellants’ Petition procedurally defective because it was unsupported by affidavits. Nevertheless, the Commission treated the Petition as an informal objection filed pursuant to § 1.587 of its rules.
. Id. Pursuant to Section 309(d) of the Communications Act, the Commission found that grant of the license renewal would serve the public interest.
. 151 U.S.App.D.C. at 158, 159, 466 F.2d at 329-330 (1972).
. 151 U.S.App.D.C. at 161, 466 F.2d at 332.
. In addition to hiring and training “qualifia-ble” Mexican-Americans, Avco recruited through media and schools popular in the minority community and maintained systematic contact with minority group organizations. Memorandum Opinion and Order at 8.
. Appellants’ statistics are disputed (see In-tervenor’s brief at 11), yet even assuming the figures most favorable to them — 12% Mexiean-American emjjloyment in an area 48% Mexican-American — the disparity -is similar to that in Stone.
. Memorandum Opinion and Order at 7; cf. Stone, supra, 151 U.S.App.D.C. at 158, 159, 466 F.2d 316.
. See Report and Order, 11 F.C.C.2d 185, 187, 11 R.R.2d 1691, 1693 (January 11, 1968) (“These procedures may be used for purposes of discovery in any case of adjudication . . . which has been designated for hearing”). See also “The F.C.C.’s New Discovery Procedures,” XXII Federal Communications Bar Journal 3 (1968).
. Washington Post, January 15, 1974, p. B9, col. 8.
. WOAI-TV’s license expires on August 1, 1974.
. A hearsay allegation that Avco coerced a reporter to make certain “sworn declarations” is unsupported by an affidavit from the reporter, although he no longer works for the station in question. See Supplemental Petition to Deny at 12. Rejection of this allegation was therefore within the Commission’s discretion.
Concurrence Opinion
(concurring):
I concur in the result.
In my judgment the only question here is whether the petitioners made a case before the Commission. They did' not make a case and that should be the end of the matter. It is not for us to give the Commission an advisory opinion on methods for dealing with allegations of discrimination. Furthermore, I am not willing to express any view as to the circumstances that may require a hearing in some future case. We can consider that question if and when it, is presented on a proper record.