Christian radio broadcaster fights back against FCC racial quota rules

The regulatory leviathan has wrapped its tentacles around a faith-based radio and TV network on the West Coast, as the Federal Communications Commission underhandedly pressures Perry Atkinson into adopting race- and sex-conscious hiring practices.

Perry embarked on a mission when he sold his house in 1983, bought a 1,000-watt radio station in Medford, Oregon, and turned it into a faith-based broadcasting headquarters. He dreamed of using the platform to strengthen his local community.

Perry emphasizes that his work “is not only the message that we broadcast, but the service that we provide for all nonprofits, especially faith-based nonprofit organizations; we give them a voice in the community.”

Perry’s theDove Media Inc. evolved from a single broadcasting station to a network of over 30 radio and TV stations stretching from Portland to San Francisco.

“We work with the Salvation Army. We work with various youth groups. We work with a lot of drug and rehab centers that are all faith-based organizations, and we kind of become their media outlet to do what they do,” he said.

When his community was engulfed in a wildfire two years ago, Perry’s theDove Media Inc. stepped up and helped provide people with food, water, and clothing after their homes were torched.

“Our calling is not just necessarily the message, which is certainly central, but it’s the service that we provide to other nonprofit organizations,” he said. “So we’re not in this alone. We’re kind of like a catalyst to help everybody else do what they do because we all believe in the same thing, and that’s making life better and serving the community.”

Now, Perry’s flourishing operation faces a regulatory roadblock.

The FCC ignores the separation of powers

The Federal Communications Commission (FCC) has resurrected a rule that mandates broadcasters with five or more employees annually collect and publicly report information about their employees’ race and sex.

Federal law precludes race- and sex-based hiring, because it requires discrimination. But the FCC apparently hopes to encourage private parties to sue broadcasters deemed insufficiently diverse. FCC commissioners who voted against reimposing the rule have already said that this rule will indeed encourage private third parties to sue broadcasters if they seem to have a race or sex imbalance in their business.

“We’re really quite concerned about this overreach. I’m hoping the Chevron case helps this case—as an overreach of government intrusion,” Perry says. “What we really object to is that our ownership reports, in addition to our employee reports, would become a public file that anybody can go into the FCC and see it, and we’d be a target for people who don’t like what we do—regardless of our hiring practices.”

“And since we’re already a target by other people who are media watchers for what we say and content that we produce, this would be an open door for them,” he added.

The FCC’s rule has been dormant for nearly 30 years and is supposedly in place to satisfy the agency’s own Equal Employment Opportunity (EEO) requirements. However, the EEO Commission already maintains those records, to ensure that employers are not discriminating against employees. Importantly, the EEOC is required to keep that information confidential.

By indirectly pressuring stations into race- and sex-conscious hiring practices, the FCC has deliberately disregarded the Equal Protection guarantee of the Fifth Amendment and violated the Nondelegation Doctrine.

The Constitution forbids the government from requiring businesses to make hiring decisions based on immutable characteristics like race, sex, or ethnicity, as it guarantees each person equal protection under the law.

Further, the Constitution makes it clear that all lawmaking power is vested, or given to, Congress and Congress alone. When Congress delegates that legislative duty to a federal agency, it abandons its constitutional mandate before the people.

When the FCC was created in 1934, it was tasked with regulating the communications industry “in the public interest,” with no further guidance on what that means. The charge is so broad that it practically hands huge swaths of unchecked lawmaking ability to unelected agency officials, violating the Constitution’s separation of powers.

In another Pacific Legal Foundation case, Texas Alliance of Energy Producers et al. v. SEC, the administrative state’s tail swished in a similar way. The Securities and Exchange Commission (SEC) capitalized on its broad rulemaking authority to mandate that public companies institute and report on policies to actively tackle climate change. That rule is far removed from the agency’s mission to protect investors from fraud, even though the agency claims the rule is necessary for investors that care about the climate. Congress didn’t authorize this controversial rule; it authorized the SEC to protect investors, and nothing else.

The same is true here: Congress never authorized the FCC to require hiring data from broadcasters, much less did Congress allow the FCC to make that data public.

Perry said that the FCC could easily wipe theDove off the map just by suing them once, because his company would not have the money to sustain the legal challenge.

“If they start suing us because our employees don’t satisfy arbitrary quotas, and I find myself in court, all of a sudden I’m out of money,” he said. “And since we are a nonprofit organization doing faith-based content, and we deal with politics and all the other things that are going on, we cover everything that those who oppose what we do would be a sitting duck for.”

If the FCC is allowed to impose their new rule, the consequences could be disastrous for small broadcasting companies across the board.

“If the FCC gets away with this, they’ll tie it to qualifications of being a public servant and having a license to broadcast. It’ll eventually get tied to your qualification to be a licensee. And at that point, small-time broadcasters are done,” Perry said.

Perry’s case reaches beyond himself and theDove Media Inc., and Pacific Legal Foundation is bolstering his fight against the FCC’s overreach. Perry’s federal lawsuit is pushing back against this regulatory wave that threatens the separation of powers and the equal protection of laws.

“We got all the guns pointed at us, and so we just can’t roll over and take this,” he declared. “And so I really hope this sees the light of day. I really do.”