Story: FCC Asks for Rehearing in Lutheran Church Case, 6/1/98

FCC Asks for Rehearing in Lutheran Church Case

(June 1, 1998) The Federal Communications Commission filed a Petition for Rehearing with the U.S. Court of Appeals for the District of Columbia on Friday in the Lutheran Church v. FCC case. Last month a three judge judge panel of the same Court struck down on equal protection grounds the FCC EEO regulations which mandate racial hiring preferences by broadcasters.

The decision of the Appeals Court on April 14 was unanimous and resounding. However, that three judge panel was made up of three Reagan and Bush appointees known for their conservatism on constitutional issues: Silberman, Williams, and Sentelle. The Federal Communications Commission's strategy may be to get a reversal from the entire panel sitting en banc.

Related Story: FCC Loses Appeal to Lutheran Church, 4/16/98.

The FCC had sought to compel a pair of gospel preaching radio stations run by a Lutheran seminary to hire a higher percentage of blacks, in the name of "programming diversity," and pursuant to its EEO regulations. The Lutherans took on the FCC, and won.

The Court found the FCC's "programming diversity" claim unconvincing and inconsistent. On the one hand, the FCC argued that it can require religious broadcasters to hire non-Lutherans for the positions of secretary, manager, or engineer without violating the First Amendment free exercise of religion clause, because those positions are not connected to the espousal of religious views over the air. On the other hand, the FCC argues that it can require broadcasters to hire minorities for these same positions in the name of increasing programming diversity. The Court wrote: "That contradiction makes a mockery out of the Commission's contention that its EEO program requirements are designed for broadcast diversity purposes."

The Court of Appeals struck down the FCC EEO rules on the grounds that they established racial preferences in violation of the equal protection "component" of the Fifth Amendment.

FCC Chairman William Kennard issued a press release on Friday in which he argued that "[t]he rules are constitutional." However, the Petition filed by his lawyers on the same day avoided the constitutional issue, and instead argued technical points. The Petition argues that the Court erred because it unnecessarily decided a constitutional question when it could have decided the case on non-Constitutional grounds.

One argument is that the Court could have decided the case in favor of the Lutheran Church on statutory grounds: the Religious Freedom Restoration Act. The other main argument is that the Court should have remanded the case to the FCC as the FCC had requested.

Two months after the Court of Appeals heard oral argument, and when it was apparent that its case was not going well, the FCC engaged in a last minute effort to avoid an Appeals Court ruling. It adopted a non-binding policy statement that religious radio broadcasters could establish religious belief as a job qualification. It further stated that it would apply this policy retroactively to the Lutheran Church, and in effect, give it the relief which it sought.

The Court of Appeals scoffed. It wrote that "the Commission has on occasion employed some rather unusual legal tactics when it wished to avoid judicial review, but this ploy may well take the prize."

This last second ploy now serves as the basis of the FCC's main argument.

May 29, 1998 Statement from FCC Chairman William E. Kennard on the Petition for Rehearing In Banc on the Lutheran Church-Missouri Synod v. FCC Opinion

Today the FCC asked the U.S. Court of Appeals for the D.C. Circuit to reconsider its decision to strike down our EEO rules. The rules are constitutional. They impose no quotas, set-asides or preferences. The rules merely require that broadcasters reach beyond the "old boy network" and consider qualified minorities and women job applicants. This is not too much to ask of broadcasters who are entrusted with a valuable license to use the public's airwaves.

The broadcasting industry should reflect the rich cultural diversity of our nation. The FCC has a role to play in protecting the traditionally disenfranchised voices in our nation. The FCC's EEO rules are one of our tools to promote inclusion in broadcasting. Most importantly, the rules have worked well for almost 30 years. And our nation is better off because of them.

Case name: Lutheran Church - Missouri Synod (Appellant) v. Federal Communications Commission (Appellee), Missouri State Conference of Branches of the NAACP (Intervenors), et. al., Case No. 97-1116, argued January 12, 1998, decided April 14, 1998.

Parties and Attorneys:

The Lutheran Church - Missouri Synod is represented by Fisher, Wayland, Cooper, Leader & Zaragoza, 2001 Pennsylvania Ave. NW, Suite 400, Washington DC, 20006-1851, 202-659-3494. Lead counsel: Barry Gottfried, bgottfreid@fwclz.com. Other counsel, Kathryn Schmeltzer, kschmeltzer@fwclz.com, 202-775-3547, Richard Zaragoza, and Gene Schaerr.
The Federal Communications Commission's lead counsel on this case is Daniel M. Armstrong, FCC Associate General Counsel. 202-418-1740.
The Department of Justice filed an Amicus curiae brief in the original Appellate proceeding, and joined in the present Petition for Rehearing. The lead attorney is Lisa Wilson Edwards, Appellate Section of Civil Rights Division, 202-514-5695.

Amicus Curiae Participants at earlier stages of the proceeding:

The NAACP, Missouri State Conference of Branches of, brief was prepared by David E. Honig.
Amicus curiae brief of the American Center for Law and Justice was prepared by Jay Sekulow, Mark N. Troobnick, and Colby M. May.
Amicus curiae brief of the Center for Individual Rights and National Religious Broadcasters was prepared by Michael P. McDonald, Daniel E. Troy, and Lawrence W. Secrest, III.