Bilingual Bicultural Coalition on Mass Media, Inc. v. Federal Communications Commission

595 F.2d 621, 193 U.S. App. D.C. 236

• Court: Court of Appeals for the D.C. Circuit
• Decided: May 4, 1978
• Docket: Nos. 75-1855, 75-2181
• Status: Published

Opinions

Opinion for the Court filed by WILKEY, Circuit Judge.

Concurring opinion filed by BAZELON, Circuit Judge.

Opinion dissenting in part filed by SPOTTSWOOD W. ROBINSON, III, Circuit Judge.

WILKEY, Circuit Judge:

These cases require us to consider once again the extent to which the Federal Communications Commission (FCC) must investigate broadcasters’ equal employment performance before it renews their broadcast licenses.¹ The FCC renewed the licenses of stations KCBS (AM), San Francisco, California,² and KONO (AM), San Antonio, Texas,³ without holding a hearing concerning their alleged job discrimination. Chinese for Affirmative Action (CAA) and Bilingual Bicultural Coalition on Mass Media (BBC) ⁴ respectively challenge those renewals, contending principally that they should have been afforded discovery to gain facts to support their contention that hearings were required.

In Chinese, we affirm the FCC’s license renewal order. In Bilingual II,⁵ we conclude that the FCC had insufficient information to find that license renewal was in the public interest, and remand for further investigation of KONO’s alleged employment bias. We decline to hold, however, that the FCC on remand must conduct further investigation by affording discovery to BBC. We hold, rather, that the FCC may conduct further investigation by any means it deems appropriate including but not limited to its own inquiries and discovery initiated by plaintiffs.

As becomes apparent in our discussion in Part II below (“Governing Principles”), the rationale we follow here has been formulated, analyzed and applied in several of our recent decisions. Most of the judges on this Court participated in one or more of the panels by which those decisions were rendered. Our opinion today, however, while in great part a recapitulation-of principles by now established, is designed to state definitively the position of this Court on the issues raised and to govern related cases in the future.

I. BACKGROUND

A. Chinese. On 1 November 1974 (CAA filed a petition to deny the license renewal application of KCBS radio,⁶ contending inter alia that the station had failed to provide Asians with equal employment opportunities. CAA cited no instances of actual discrimination, and relied instead on a showing of statistical disparity. Asian-Americans comprise over 6% of the population of the San Francisco-Oakland Standard Metropolitan Statistical Area (SMSA); ⁷ as CAA pointed out, however, KCBS’ annual employment reports⁸ revealed that during most of the 1971-74 license term only one of the station’s 84 employees was Asian. In view of this disparity, CAA asked that KCBS be directed to answer CAA’s 98-ques-tion “Employment Questionnaire,” in order that it could better evaluate the station’s affirmative action plan.

On 27 November 1974 CBS filed its Opposition. It explained that KCBS had in fact employed ten Asians during the 1971-74 license term, but that, for various reasons, nine of these workers were omitted from, or improperly listed in, its annual employment reports.⁹ CBS said that the station currently employed five Asians, representing 6.1% of its workforce, and argued that it should not be required to answer CAA’s questionnaire, which it termed “extremely lengthy and burdensome.” CAA replied on 20 December 1974, contending primarily that more information was needed about the Asians KCBS assertedly had employed during the expiring license term.

The FCC agreed with this contention. Accordingly, it requested on 23 September 1975 that KCBS provide, for the eight Asians not included in the annual reports,¹⁰ dates of employment and termination, description of positions held, and national origin and sex. On 3 October 1975 CBS sent this information to the Commission; it said that the station then employed three Asians (two females and one male, representing 3.6% of its workforce), and explained the circumstances under which several former Asian employees had left.¹¹ CAA received a copy of this response.

The FCC’s decision was adopted on 21 October and released on 6 November 1975. The Commission found that KCBS had employed numerous Asians during the 1971 — 74 license term, and that the station’s overall minority and female employment ratios approached parity with the percentages of minority group members and women in the San Francisco-Oakland SMSA.¹² Minorities (including Asians) and women, moreover, found substantial representation in the station’s professional positions.¹³ On these facts, the Commission held that KCBS had complied with the FCC’s “EEO rules and policies”:¹⁴

The combination of licensee’s current performance in hiring and promotion, as reflected on the 1975 annual employment report, and its explanation for the low numbers of Asian Americans appearing on reports for 1971-74, suffice to show that KCBS’ EEO results — numbers of protected-group employees, viewed in the light of an affirmative action program— are within a zone of reasonableness, and that its past record, while characterized by high job turnover, reflects a willingness to hire minority individuals.

The Commission therefore without a hearing granted CBS’ license renewal application for a three-year term; CAA’s request for discovery was denied.

B. Bilingual II. On 21 July 1974 BBC filed a petition to deny the license renewal application of KONO radio, contending inter alia that the station discriminated against Mexican-Americans in its employment practices. Like CAA, BBC cited no instances of intentional discrimination and relied upon a statistical analysis of the station’s recent employment record. Although Mexican-Americans made up 44% of the population of the San Antonio SMSA, the percentage of Mexican-Americans in KONO’s workforce was only 16% in 1974 and 17% in 1975. BBC asked the FCC for permission to take discovery, by depositions and interrogatories, to determine the underlying reasons for these employment disparities. Subsequent pleadings filed by KONO and BBC disputed the need for discovery and the interpretation to be accorded the conceded statistical disparities. KONO contended that its minority employment percentages fell within a “zone of reasonableness; ”¹⁵ BBC contended that the disparities were so egregious as to constitute prima facie evidence of employment discrimination.

The FCC’s decision was adopted on 17 July and released 5 August 1975. The Commission first examined the station’s employment statistics and concluded that they fell outside the “zone of reasonableness” in both 1974 and 1975.¹⁶ Turning to KONO’s recruitment policy, the FCC noted that the number of Mexican-American employees had remained almost stable since 1971, and concluded that the station’s affirmative action plan was “passive”. The plan, said the Commission, was “a mere guarantee of employment neutrality, lacking the type of vigorous, systematic efforts to widen the pool of minority job applicants contemplated by our rules.”¹⁷ Having found that KONO’s minority employment was outside the zone of reasonableness and that its affirmative action plan was inadequate, however, the FCC nevertheless granted the station a full three-year license renewal without a hearing. The renewal was conditioned on the station’s filing reports concerning its hiring practices and descriptions of its efforts to recruit minorities and women during the next 12 months.¹⁸ BBC’s request for discovery was denied as “repetitive in light of the additional filings required” as a condition of renewal.

C. Course of the Litigation. CAA and BBC respectively appealed the license renewals.¹⁹ On 20 April 1977 a panel of this Court, expressing somewhat differing views, reversed both renewal orders, holding that the Commission erred in refusing to grant petitioners prehearing discovery on their claims of employment discrimination. On 27 June 1977 we ordered rehearing en banc and, in accordance with our rule, vacated the panel opinion.

II. GOVERNING PRINCIPLES

The FCC is directed to renew broadcast licenses if it finds that renewal would serve the “public interest, convenience, and necessity.” ²⁰ From the outset, the' Commission has recognized that the public interest is not served by licensees who engage in intentional employment discrimination.²¹ This is not to say, of course, that the FCC in considering license renewals is charged with an undifferentiated mandate to enforce the antidiscrimination laws: the FCC is not the Equal Employment Opportunity Commission (EEOC), and a license renewal proceeding is not a Title VII suit. The Supreme Court has consistently held that “the use of the words ‘public interest’ in a regulatory statute is not a broad license to promote the general public welfare,” and that these words “take meaning from the purposes of the regulatory legislation.”²² In view of the purposes of its regulatory legislation, the FCC analyzes the employment practices of its licensees only “to the extent those practices affect the obligation of the licensee to provide programming that ‘fairly reflects the tastes and the viewpoints of minority groups,’ and to the extent those practices raise questions about the character qualifications of the licensee.”²³

Iii conducting these two analyses the Commission is concerned, respectively, with two distinct policies: affirmative action and anti-discrimination. In implementing its affirmative action policy, the FCC functions very differently from the EEOC, both in the type of inquiries it makes and in the types of sanctions it can impose. The EEOC aims primarily to remedy the effects of past discrimination; in its efforts to make aggrieved persons whole, it can invoke an array of retrospective remedies, including reinstatement, promotion, and restoration of seniority or back pay. The FCC, by contrast, is concerned primarily with the future:²⁴ in its efforts to ensure that programming reflects minority interests, it invokes prospective, administrative sanctions — short-term license renewals and license renewals conditioned on reporting²⁵ —which enable it to monitor broadcasters’ progress in recruiting and hiring minority workers. Because its affirmative action policy is prospective, the Commission rarely designates license renewal applications for hearings solely to investigate substandard affirmative action performance.²⁶

The FCC’s concerns, however, cannot be wholly prospective: in implementing its anti-discrimination policy, the Commission of necessity must investigate broadcasters’ past employment practices. A documented pattern of intentional discrimination would put seriously into question a licensee’s character qualifications to remain a licensee: intentional discrimination almost invariably would disqualify a broadcaster from a position of public trusteeship. Where responsible and well-pleaded claims of discrimination have been made, therefore, the FCC may be required to hold a hearing to resolve these charges before granting a license renewal.

The grounds for holding a renewal hearing are spelled out plainly both in the statute²⁷ and-in our decisions: a hearing is required when, a petition to deny raises a “substantial and material questions of fact” or when the Commission for any reason is unable to find that license renewal will serve the “public interest, convenience, and necessity.”²⁸ A petitioner’s allegations must be both “substantial and specific;”²⁹ the “allegation of ultimate, conclusionary facts or more general allegations on information and belief, supported by general affidavits, . . . are not sufficient.”³⁰ Evidence of actual discriminatory conduct in most cases will present a substantial and material question of fact warranting a renewal hearing.³¹ Evidence of minor statistical disparities between the available minority workforce and a station’s minority employment, standing alone, in most cases will not warrant a hearing.³² Yet evidence of substantial statistical disparity — evidence that a licensee’s minority employment is outside the “zone of reasonableness” ³³ — while it may not in itself necessarily require resolution at a hearing, should at least put the FCC on notice that more information is required before the license renewal application can be granted.³⁴ This is because a substantial statistical disparity, especially when coupled with a languishing affirmative action plan, raises questions as to whether the station’s poor EEO performance owes to inadvertence, or to intentional discrimination.

If more information is required, the method by which it is to be gathered “is, of course, a matter for the Commission.” ³⁵ In Bilingual I, we said in dictum that “some means for developing the reasons for statistical disparities” must be found, and suggested FCC-initiated inquiry and petitioner-initiated discovery as possible alternative solutions.³⁶ The FCC generally has elected to conduct its own inquiries,³⁷ and we specifically have approved of this course.³⁸ Before the Commission is obliged to conduct further inquiry, however, it must have before it either well-pleaded allegations of overt discrimination or statistical evidence of substantial underemployment of minority groups. Otherwise, the FCC will have sufficient information to find that license renewal is in the public interest and thus to grant renewal without a hearing.

Finally, then, we come to the question before us: whether the FCC in these cases had sufficient information to make an informed decision that the licensees had not engaged in intentional discrimination during the expiring license term. In answering this question, of course, “ ‘the scope of our review is quite narrow;’ ” ³⁹ we sit to review two license renewal orders, not to restructure the FCC’s information-gathering process. If the Commission’s action in granting those renewals “was not arbitrary, capricious or unreasonable, we must affirm.”⁴⁰

III. ANALYSIS

A. Chinese. In its petition to deny, CAA presented figures, drawn from KCBS’ annual employment reports, showing that the station had employed only one Asian during most of the 1971-74 license term. These figures constituted statistical evidence of substantial underemployment of a significant minority group.- The FCC thereupon was obliged either to conduct is own further inquiry or to afford CAA discovery to ascertain the reasons underlying this statistical disparity. The Commission pursued the former course. Its inquiry revealed that KCBS in fact had employed ten Asians during the 1971-74 license term and that a large majority of Asian employees at all times had held professional positions. Although the Commission apparently did not make a percentage analysis of Asian-Americans on KCBS’ payroll, such workers comprised 6.1% and 3.6% of the station’s job-force in 1974 and 1975 respectively. CAA did not dispute these figures.

Proceeding upon the facts before it, the FCC properly concluded that KCBS had employed a substantial number of Asian-Americans during the 1971 — 74 license term, that its employment figures for minorities in general fell within the zone of reasonableness,⁴¹ and that its affirmative action program was effective.⁴² In view of these findings, as well as the absence of any allegation of overt discrimination, the FCC properly concluded that no substantial and material question of fact had been raised and that renewal without prospective remedies was consistent with the public interest. The Commission therefore rejected CAA’s request for discovery and summarily renewed the license.

For the first time on appeal to this Court, CAA contends that there remains one area of factual uncertainty which precluded an informed decision that renewal of KCBS’ license was in the public interest. CAA points to the relatively high turnover of Asian employees at KCBS,⁴³ and argues that this evidences employment discrimination: the station’s employment of Asians, it says, amounts to a mere “revolving door.” ⁴⁴ CAA contends that it should have been afforded discovery on this question.⁴⁵

CAA’s failure to make its “revolving door” argument before the Commission stems in part from the absence of regularized procedures governing the Commission’s “further inquiry” in license renewal cases. In this case, the FCC did not request further information from KCBS until nine months after the initial pleadings had been filed. Following this nine-month delay, the Commission adopted its final decision only 15 days-after receiving KCBS’ response to its inquiry. Promptness of this order, we suspect, might well surprise more than one member of the FCC bar. Although CAA was, as it must be, provided with copies of the Commission’s request and of KCBS’ reply, it was not notified either of the proper procedures and timing for responding to the licensee’s submission or of the FCC’s intention to decide the case in 15 days. Under these circumstances, CAA’s failure to raise the “revolving door” question — a question that was suggested by the information KCBS furnished — before the FCC reached its decision is quite understandable.

This is not to say, of course, that 15 days is necessarily too brief a span to allow for responsive submissions by petitioners. The point, rather, is that petitioners must be informed as to when subsequent pleadings must be received by the Commission if they are to be considered in its decision. The FCC must, if it has not already done so, adopt procedures that will afford petitioners like CAA reasonable time in which to comment on or rebut newly submitted evidence as well as reasonable notice of what the applicable deadlines are. Only under such procedures can petitioning groups be assured the meaningful opportunity to participate mandated by our decisions since United Church of Christ⁴⁶

Although the absence of appropriate FCC procedures may explain CAA’s failure to present the “revolving door” argument to the Commission before the renewal decision was made, it did not relieve CAA of its obligation to seek FCC rehearing on this issue before raising it on appeal. Section 405 of the Communications Act states that the filing of a petition for rehearing is a condition precedent to judicial review of a Commission order if the petitioner “relies on questions of fact or law upon which the Commission . . . has been afforded no opportunity to pass.”⁴⁷ The “revolving door” allegation presents a. novel question of fact upon which the Commission has been afforded no opportunity to pass. Having failed to petition for rehearing in this case,⁴⁸ CAA cannot make this allegation here.

Apart from the procedural inadequacies that we have mentioned, we see no question but that the Commission acted properly, on the facts before it, in unconditionally renewing the KCBS license without a hearing. We accordingly affirm the FCC’s decision. ■

B. Bilingual II. On the basis of the initial pleadings in the license renewal proceeding, the Commission found that KONO’s employment of Mexican-Americans was outside the zone of reasonableness, that the percentage of Mexican-Americans in its workforce had remained “static” for four years, and that its affirmative action. program was “passive.” We think that these findings, taken together, created a factual uncertainty as to whether KONO had engaged in intentional discrimination during the expiring license term.

Yet the. Commission refused either to grant BBC’s request for discovery or to conduct its own inquiry into the “underlying reasons” for the employment disparities.⁴⁹ Instead, without making any findings as to employment discrimination, the Commission renewed KONO’s license for a full three-year term, subject only to future monitoring.

This was an abuse of discretion. On the initial pleadings before it, the FCC had insufficient undisputed factual information to conclude that renewal of KONO’s license was in the public interest. We therefore remand this case in order that the Commission may get the facts concerning KONO’s alleged employment discrimination; unless this factual uncertainty is resolved favorably to KONO, a hearing will have to be held before KONO’s license can be renewed.⁵⁰

The method by which this factual uncer-' tainty shall be resolved is, as we often have said, up to the Commission.⁵¹ We have neither the inclination nor the authority to command the FCC to adopt procedures that seem desirable to us.⁵² As we noted earlier, the FCC generally has elected to resolve factual uncertainties by conducting its own inquiry, rather than by affording petitioners discovery.⁵³ For several reasons, this usually will be the preferable course: the Commission's questions are likely to be more expert, the licensee’s answers more uniform and comparable. In addition, licensee cooperation is likely to be fuller and more prompt. Only if the FCC on remand is unwilling or unable to conduct its own inquiry is it under any obligation to afford discovery to petitioners here.

This does not mean, of course, that petitioners have no role to play should the FCC elect to proceed with its own inquiry. The full report of the Commission’s investigation, including all evidence it receives, must be placed in the public record, and a stated reasonable time allowed for response and rebuttal by petitioners. These procedures will permit meaningful participation by petitioners without necessitating potentially burdensome discovery.

At oral argument, petitioners contended that the FCC inquiry could never be wholly adequate: discovery by BBC would be needed in any event to test the veracity of KONO’s representations. This argument plainly proves tod much. As a matter of logic, it leads inexorably to the conclusion that discovery must be permitted whenever a petition to deny is filed. The Commission considers over 3,000 license renewal applications each year;⁵⁴ to require that its 13 Administrative Law Judges assume the burden of passing upon the propriety of an inevitable host of interrogatories would create a regulatory nightmare.⁵⁵ Nor would it be necessary. Ample sanctions exist for false statements knowingly made to the Commission,⁵⁶ and licensees are well aware of their duty, not only to avoid positive untruths, but to “be scrupulous in providing complete and meaningful information.” ⁵⁷

If any generalization can be extracted from this litigation, of course, it is not so much that the information available to the Commission may be untrustworthy, but that the information available to it may be inadequate. Since deciding Bilingual II, however, the FCC has taken substantial steps toward improving both the quantity and the quality of information concerning its licensees’ EEO practices. In 1976 the Commission adopted a Model Equal Employment Opportunity Program, which requires licensees to provide detailed data about minority recruitment, hiring, training and promotion.⁵⁸ More recently the Commission announced Notice of a Proposed Rulemaking to consider revisions of the annual employment reports submitted by licensees.⁵⁹ These steps are to be highly commended, and will undoubtedly facilitate better informed license renewal decisions by the Commission.

Equally importantly, these steps will go a long way toward relieving the frustrations of which BBC in the instant case has complained. As we noted in Bilingual I, citizens groups challenging license renewals generally have limited resources and few procedural tools for gathering evidence about broadcasters’ employment practices.⁶⁰ If such licensee is required to provide sufficient, publicly-available data on a continuing basis, interested and responsible parties can undertake the meaningful inquiry of their own without tying up FCC personnel or subjecting licensees to unnecessarily lengthy requests for discovery.

CONCLUSION

The FCC’s license renewal order in Chinese is affirmed. The FCC’s license renewal order in Bilingual II is reversed, and the case, is remanded to the Commission for proceedings in accordance with this opinion.

So ordered.

1 . We recently have considered this and related questions in Black Broadcasting Coalition of Richmond v. FCC, 181 U.S.App.D.C. 182, 556 F.2d 59 (1977); National Organization for Women (NOW) v. FCC, 181 U.S.App.D.C. 65, 555 F.2d 1002 (1977); Alianza Federal de Mercedes v. FCC, 176 U.S.App.D.C. 253, 539 F.2d 732 (1976); Columbus Broadcasting Coalition v. FCC, 164 U.S.App.D.C. 213, 505 F.2d 320 (1974); Bilingual Bicultural Coalition of Mass Media, Inc. v. FCC (“Bilingual I”), 160 U.S.App.D.C. 390, 492 F.2d 656 (1974); and Stone v. FCC, 151 U.S.App.D.C. 145, 466 F.2d 316 (1972). The instant cases, like the cases just cited, involve license renewal proceedings in which there was no other applicant for the license and where in consequence no comparative hearing was required. We express no views on the proper treatment to be accorded broadcasters’ equal employment performance in situations where comparative hearings are required.

2 . CBS, Inc., 56 F.C.C.2d 296 (1975).

3 . Mission Central Co., 54 F.C.C.2d 581, reconsideration denied, 56 F.C.C.2d 782 (1975).

4 . CAA is an organization concerned with employment opportunities for Chinese-Americans. BBC is an organization concerned with employment opportunities for Mexican-Americans. In Office of Communication of the United Church of Christ v. FCC (“Church of Christ I”), 138 U.S.App.D.C. 112, 359 F.2d 994 (1966), we directed that intervenors representing segments of a licensee’s listening public be permitted to participate in license renewal proceedings. Since then, we have recognized the important role played by citizens groups in ensuring compliance with the statutory mandate that license renewals serve the public interest. . Such groups must not “be treated as interlopers,” Office of Communication ,of the United Church of Christ v. FCC (“Church of Christ II”), 138 U.S.App.D.C. 112, 115, 425 F.2d 543, 546 (1969) (Burger, J.), and must be afforded “a fair and reasonable opportunity ... to seek explanations for [licensees’] underemployment of minority groups,” Bilingual I, 160 U.S.App.D.C. at 393, 492 F.2d at 659.

5 . Litigation between BBC and the FCC previously came before us in Bilingual Bicultural Coalition of Mass Media, Inc. v. FCC (“Bilingual I”), 160 U.S.App.D.C. 390, 492 F.2d 656 (1974).

6 . The procedures to be following in filing a petition to deny are set out at 47 U.S.C. § 309(d)(1) (1970).

7 . The parties and the FCC have adopted or suggested various different bases for calculating the relevant “population” percentages. There is some question as to the correct geographical unit (whether the nine-county area served by KCBS, the five-county area comprising the SMSA, or the city of San Francisco itself); the correct population unit (whether the area workforce, or the area population as a whole); and the correct statistical result using given units (according to CBS, Asians comprise 6.2% of the relevant SMSA population; according to CAA, 6.9%). More significantly, there is dispute as to which minority group or groups should be used as a basis of comparison (CBS and the FCC have adopted “all minority groups;” CAA has variously adopted “Asian-Americans” and “Chinese-Americans”).

Given the manipulability of statistics in inquiries of this sort, clear guidelines, we think, are essential. The FCC’s position, as we understand it, is that the most relevant figure is usually the overall percentage of minorities in the SMSA workforce. See Rahall Broadcasting, Inc., 66 F.C.C.2d 295, 296 (1977); Nondiscrimination in the Employment Policies and Practices of Broadcast Licensees, 60 F.C.C.2d 226, 242 (1976); 1972 License Renewal Applications for 28 Broadcast Facilities Licensed to the Philadelphia, Pa. Area, 53 F.C.C.2d 104, 113 (1975). Only “where one minority group predominates within the SMSA” is that group’s percentage the focus of comparison. Mission Central Co., 56 F.C.C.2d 782, 784 (1975) (finding Mexican-Americans “dominant minority group” where they comprise 44% of SMSA and 84% of composite minority population in SMSA). Accord, KRMD, Inc., 53 F.C.C.2d 1179, 1186-87 (1975) (finding blacks “dominant” minority group where they comprise 33% of SMSA and 99% of composite minority population in SMSA). We believe that the FCC’s position, with its statistical focus on overall minority population, is a reasonable one. Individual minority groups in most cases will comprise small percentages of the SMSA workforce; such small percentages generally will provide no meaningful basis for comparison with the workforces of most radio stations, which often employ only 25 to 75 workers.

This does not mean, however, as the dissent suggests, that the FCC has limited “the coverage of its antidiscrimination rules to groups dominant in the licensee’s service area,” diss. op. at 251 of 193 U.S.App.D.C., at 636 of 595 F.2d, or that a station is free to discriminate against one minority group so long as it practices countervailing discrimination in favor of another. See id. at 266 of 193 U.S.App.D.C., at 651 of 595 F.2d. To read our opinion to countenance such discrimination would be wholly to misconstrue our views. The FCC has never wavered from its adherence to the principle that “ ‘[t]he nondiscrimination provision applies to all persons . . . Diss. op. at 262 of 193 U.S.App.D.C., at 647 of 595 F.2d, quoting Inquiry Into the Employment Policies and Practices of Certain Broadcast Stations Located in Florida, 44 F.C.C.2d 735, 735-36 (1974). But there are many ways of proving discrimination, and percentage statistical comparisons, while often useful, are not always dispositive or even reliable. The Commission’s position, as we see it, is simply that given its licensees’ generally small workforces, inferences of discrimination from statistical disparities become weaker and less reliable as the percentage 'representation, of the individual minority group in the SMSA workforce, contracts. After checking to see that the percentage figures for all minorities and for the largest individual minority group are acceptable, therefore, the FCC investigates discrimination against smaller groups by looking to other types of evidence. Evidence of actual discrimination in hiring, evidence of recruiting aimed selectively at one minority, and evidence that a particular group has had little or no representation on a station’s payroll are clearly relevant, and should be examined to determine whether an employer is in fact discriminating against a “nondominant” minority, notwithstanding acceptable overall figures. Like the dissent, we “see no reason whatever for countenancing purposeful discrimination merely because it is aimed at only one small group,” diss. op. at 262 of 193 U.S.App.D.C., at 647 of 595 F.2d, and we firmly believe that the FCC shares our conviction.

This is not to say, of course, that the question of the proper use of statistics is free from difficulty. The question is difficult indeed. But it is a question which has not properly been raised by the parties to this appeal; a question whose resolution is not necessary to dispose of these cases; and a question which is best left to administrative rather than judicial investigation in the first instance. See note 42 infra.

8 . FCC Form 395, adopted in Petition for Rule-making to Require Broadcast Licensees to Show Nondiscrimination in Their Employment Practices, 23 F.C.C.2d 430, 436-42 (1970). The FCC recently released Notice of a Proposed Rulemaking to consider amendments to Form 395. See p. 250 of 193 U.S.App.D.C., at p. 635 of 595 F.2d & note 59 infra.

9 . Six of the Asian employees were not employed during the particular payroll periods from which the 395 Form data were drawn. Two of the Asian employees were omitted because a computerized payroll system used to generate 395 Form data did not include them. One of the Asian employees (a Filipino) was listed on the Forms as “Spanish-sumamed” rather than “Asian.”

10 . The ninth Asian was included in the annual reports, but was listed as “Spanish-sumamed.” See note 9 supra.

11 . Of the eight Asians not listed in the annual reports, one was still employed; one had joined a training program at a local television station; one had accepted a fellowship at the Washington Journalism Center; one had taken a news position at another station; and one had been discharged and had filed discrimination complaints with state and federal agencies. No reasons for the departure of the remaining three Asian employees were given. This information had not been requested by the FCC, but was supplied voluntarily.

12 . In the San Francisco-Oakland, SMSA, the five largest minority groups comprise 25.8% of the workforce; women comprise 38.4%. Of KCBS’ full-time employees in 1975, 23.8% belonged to minority groups and 29.8% were women. 56 F.C.C.2d at 302 & n.12.

13 . Fourteen minority employees (eight men and six women) held positions in the top four job categories; the remaining six minority employees held office and clerical jobs. On average, over 60% of Asian employees held professional positions. See 56 F.C.C.2d at 302.

14 . Id. (footnotes omitted).

15 . We have consistently held that employment and population percentages need not necessarily be in parity; it is sufficient if the licensee’s minority employment figures, considered under all the facts of the case, fall within a “zone of reasonableness”. Stone, 151 U.S.App.D.C. at 161, 466 F.2d at 332. See Black Broadcasting, 181 U.S.App.D.C. at 184-185, 556 F.2d at 61-62; NOW, 181 U.S.App.D.C. at 78, 555 F.2d at 1015; Alianza, 176 U.S.App.D.C. at 261, 539 F.2d at 740; Columbus Broadcasting, 164 U.S.App.D.C. at 222, 505 F.2d at 329; Bilingual I, 160 U.S.App.D.C. at 393, 492 F.2d at 659 & n.11. See notes 16 & 33 infra.

16 . The FCC noted that KONO’s employment profiles were similar to those of San Antonio licensees which had been found to be within the zone of reasonableness in 1972. The Commission stated, however, that “[t]he zone of reasonableness is a dynamic concept, which contracts as licensees are given time in which to implement [FCC] antidiscrimination rules and policy.” 54 F.C.C.2d at 586. See 56 F.C.C.2d at 784-85. In Bilingual I, we intimated that the zone of reasonableness could be expected to contract over time. See 160 U.S.App.D.C. at 393, 492 F.2d at 659. In NOW, we approved the FCC’s use of the “contracting zone” concept. See 181 U.S.App.D.C. at 71, 555 F.2d at 1018 & n.108.

17 . 54 F.C.C.2d at 587.

18 . KONO requested reconsideration of the conditional renewal, contending inter alia that no administrative sanction was warranted in view of its 45-year history of minority employment. Although the FCC rejected the petition, it said that KONO’s history of minority employment “was a consideration in [its] determination to condition the license renewal, rather than take more stringent action, i. e., renewal of the license for a short term or designation of the application for a hearing on employment issues.” 56 F.C.C.2d at 786.

19 . Appeal lies under 47 U.S.C. § 402(b)(6) (1970).

20 . 47 U.S.C. § 309(a) (1970).

21 . Petition for Rulemaking To Require Broadcast Licensees To Show Nondiscrimination in Their Employment Practices, 18 F.C.C.2d 240, 241 — 42 (1969); Petition for Rulemaking To Require Broadcast Licensees To Show Nondiscrimination in Their Employment Practices, 13 F.C.C.2d 766, 769 (1968).

22 . NAACP v. FPC, 425 U.S. 662, 669, 96 S.Ct. 1806, 48 L.Ed.2d 284 (1976). Cf. id. at 670, 96 S.Ct. at 1812:

The use of the words “public interest” in the Gas and Power Acts is not a directive to the Commission to seek to eradicate discrimination, but, rather, is a charge to promote the orderly production of plentiful supplies of electric energy and natural gas at just and reasonable rates.

(footnote omitted).

23 . NOW, 181 U.S.App.D.C. at 70, 555 F.2d at 1017, quoting NAACP v. FPC, 425 U.S. 662, 670 n.7, 96 S.Ct. 1806, 1812, 48 L.Ed.2d 284 (1976) (emphasis and footnotes omitted).

24 . See NOW, 181 U.S.App.D.C. at 70, 555 F.2d at 1017, quoting National Broadcasting Co., 58 F.C.C.2d 419, 422 (1976): “[The FCC’s approach] is prospective, seeking to lead a licensee who has not possessed an adequate affirmative action program in the past to adopt policies ensuring an active recruitment program and genuine equal employment opportunity in the future.”

25 . See NOW, 181 U.S.App.D.C. at 82, 555 F.2d at 1019 & nn.113-14 (citing cases).

26 . See Supplemental Memorandum of FCC (31 Oct. 1977) at 5-6.

27 . 47 U.S.C. § 309(d)(2) (1970).

28 . Church of Christ I, 123 U.S.App.D.C. at 341, 359 F.2d at 1007. See NOW, 181 U.S.App.D.C. at 68, 555 F.2d at 1005; Alianza, 176 U.S.App.D.C. at 257, 539 F.2d at 736; Columbus Broadcasting, 164 U.S.App.D.C. at 215, 505 F.2d at 322.

29 . Alianza, 176 U.S.App.D.C. at 257, 539 F.2d at 736.

30 . S.Rep.No.690, 86th Cong., 1st Sess. 3 (1959), quoted in Stone, 151 U.S.App.D.C. at 151, 466 F.2d at 322.

31 . See Black Broadcasting, 181 U.S.App.D.C. 184—185, 188, 556 F.2d at 61-62, 64 (hearing required where allegations of overt discrimination are responsibly made and minority employment is' outside zone of reasonableness); Nondiscrimination in the Employment Policies and Practices of Broadcast Licensees, 54 F.C.C.2d 354, 361 (1975); 1972 License Renewal Applications for 28 Broadcast Facilities Licensed to the Philadelphia, Pa. Area, 53 F.C.C.2d 104, 113 n.11 (1975); Petition for Rule-making to Require Broadcast Licensees to Show Nondiscrimination in Their Employment Practices, 13 F.C.C.2d 766, 770 (1968).

32 . See NOW, 181 U.S.App.D.C. at 81, 555 F.2d at 1018; Alianza, 176 U.S.App.D.C. at 261, 539 F.2d at 740; Columbus Broadcasting, 164 U.S.App.D.C. at 222, 505 F.2d at 329; Bilingual I, 160 U.S.App.D.C. at 392, 492 F.2d at 658-59; Stone, 151 U.S.App.D.C. at 158-159, 160, 466 F.2d at 329-30, 332. Cf. Black Broadcasting, 181 U.S.App.D.C. at 85, 87, 556 F.2d at 62, 64 hearing required where substantial statistical disparity accompanied by responsible allegations of overt discrimination and serious questions as to adequacy of affirmative action plan). In Stone and Bilingual I, we suggested in dictum that statistical evidence of an extremely low rate of minority employment could constitute a prima facie showing of employment discrimination. See 151 U.S.App.D.C. at 161, 466 F.2d at 332, 160 U.S.App.D.C. at 392, 492 F.2d at 658.

33 .The FCC has adopted a rule of thumb that a station’s “overall minority and/or female employment” is within the zone of reasonableness if it “reflects at least 50 percent of [those groups’] respective percentages in the relevant work force and 25 percent of such percentages in the station’s upper-four jobs.” Letter of FCC Secretary Vincent J. Mullins to George A. Fisher, Clerk, U.S. Court of Appeals for the D.C. Circuit (16 Sept. 1977) at 1. This Court in the past has found more substantial disparities “reasonable,” see note 41 infra, and the FCC’s own rule previously was less stringent. See Nondiscrimination in the Employment Policies and Practices of Broadcast Licensees, 54 F.C.C.2d 354 (1975). Considered in a vacuum, of course, naked statistical comparisons are meaningless; the statistical disparities allowable under a zone of reasonableness necessarily will contract over time, see NOW, 181 U.S.App.D.C. at 81, 555 F.2d at 1018-19 and note 16 supra, and “a disparity that is reasonable in light of a recruitment policy might not be reasonable in its absence.” Bilingual I, 160 U.S.App.D.C. at 392, 492 F.2d at 658.

34 . A license renewal hearing, where (as here) there is no other applicant for the license, can be an unnecessarily costly and time-consuming procedure, and the Congressional purpose is to avoid such hearings whenever possible. See Stone, 151 U.S.App.D.C. at 151, 466 F.2d at 322 & n.14; Southwestern Operating Co. v. FCC, 122 U.S.App.D.C. 137, 138, 351 F.2d 834, 835 & n.2 (1965); Letter of FCC Secretary Vincent J. Mullins, supra note 33 at 12. When the FCC concludes from the initial pleadings that a factual uncertainty prevents summary renewal of a license, therefore, it generally attempts to resolve the factual uncertainty by requesting further information, rather than by designating the application for an immediate renewal hearing. See id at 2-5, 8, 12; Supplemental Memorandum of FCC at 7. The Communications Act permits this course. Section 309(d)(2) and (e) of the Act require the FCC to designate an application for a hearing “[i]f a substantial and material question of fact is presented or if the Commission for any reason is unable to find that grant of the application would be consistent with [the public interest, convenience, and necessity].” 47 U.S.C. § 309(d)(2) (1970). Yet this section does not require that the FCC make the necessary findings on the basis of the initial pleadings in the license renewal proceeding; it states that the Commission shall make its findings “on the basis of the application, the pleadings filed, or other matters which it may officially notice.” Id The Act expressly permits the FCC to request further information from the licensee. See note 36 infra. The facts thus generated become part of the licensee’s renewal application or are facts that the FCC may notice officially.

35 . Bilingual I, 160 U.S.App.D.C. at 393, 492 F.2d at 659.

36 . Id. (emphasis original). The Communications Act expressly permits the FCC to conduct further inquiry if it believes that more information is necessary before it can dispose of a license renewal application. See 47 U.S.C. § 308(b) (1970):

The Commission, at any time after the filing of such original application and during the term of any such license, may require from an applicant or licensee further written statements of fact to enable it to determine whether such original application should be granted or denied or such license revoked.

See NOW, 181 U.S.App.D.C. at 71, 555 F.2d at 1018 (“If the Commission here . . had not itself sought out more detailed data [regarding the station’s] hiring and promoting[,] it may have been under some obligation to NOW to afford it some discovery ... so that the effectiveness of [the station’s] EEO plan could be fairly assessed.”) (footnote omitted).

37 . Factual uncertainties led the FCC to request more detailed employment information from broadcasters in the instant Chinese case, see p. 241 of 193 U.S.App.D.C., p. 626 of 595 F.2d supra, and in NOW, 181 U.S.App.D.C. at 69, 71, see 555 F.2d at 1016, 1018. Because the FCC is prepared to conduct its own inquiry when necessary, it has denied petitioners’ requests for prehearing discovery. E. g., Avco Broadcasting Corp., 53 F.C.C.2d 48, 57-59 (1975). At present, the Commission’s rules provide for discovery only after a license renewal application has been designated for a hearing. 47 C.F.R. § 1.311 (1976). A recent FCC order declining to amend these rules so as to provide for prehearing discovery, see Citizens Communications Center, 61 F.C.C.2d 1112, 1125-27 (1976), was not challenged.

38 . See NOW, 181 U.S.App.D.C. at 71, 555 F.2d at 1018 n.103.

39 . Stone, 151 U.S.App.D.C. at 151, 466 F.2d at 322, quoting West Mich. Telecasters, Inc. v. FCC, 130 U.S.App.D.C. 39, 40, 396 F.2d 688, 691 (1968).

40 . Columbus Broadcasting, 164 U.S.App.D.C. at 217, 505 F.2d at 324, quoted in NOW, 181 U.S.App.D.C. at 68, 555 F.2d at 1005. Accord, Alianza, 176 U.S.App.D.C. at 257, 539 F.2d at 736.

41 . As noted above, the FCC has adopted a rule of thumb that a station’s percentage of minority employees is within the zone of reasonableness if it exceeds 50% of parity with the percentage of minority persons in the relevant workforce. See note 33 supra. KCBS’ overall minority employment was at 92% of parity in 1975. See note 12, supra. KCBS’ Asian employment was at 98% of parity in 1974 and at 56% of parity in 1975. See pp. 240 & 241 of 193 U.S.App.D.C., pp. 625 & 626 of 595 F.2d supra. In Stone, we found a station’s black employment to be within the zone of reasonableness when it was at 29% of parity. See 151 U.S.App.D.C. at 161, 466 F.2d at 332. In Bilingual I, we found a station’s Mexican-American employment to be within the zone of reasonableness when it was at 25% of parity. See 160 U.S.App.D.C. at 495, 492 F.2d at 659 & n.ll.

42 . 56 F.C.C.2d at 302 & n.13. We reject the dissent’s view that the FCC’s decision manifests a “nearly complete dependence on KCBS’s post-term statistics, which the court accepts.” Diss. op. at 267 of 193 U.S.App.D.C., at 652 of 595 F.2d (footnotes omitted). Although post-term statistics may be of some relevance under the Commission’s prospective approach, see p. 243 of 193 U.S.App.D.C., p. 628 of 595 F.2d supra, we have never accepted, and we do not here accept, the proposition that license renewals may be granted in reliance on post-term statistics alone. To permit exclusive reliance on such statistics would be to allow licensees to discriminate throughout the term, confident that they could secure renewal by hiring minority workers after the term had expired. We would not permit this; we trust the FCC would not permit it either. But Chinese is not such a case. As Judge Robinson himself recognizes, the Commission examined statistics on the number of Asian-American (specifically Chinese and Japanese) employees during the term, and based its renewal decision not only on a favorable statistical review, but also on the absence of any allegations of overt discrimination and on the effectiveness of the station’s affirmative action plan.

The dissent contends that the FCC would have found KCBS’s statistical showing inadequate if it had cast the figures in terms of “person/months,” rather than examining the number of Asian employees or their 1974 percentage of KCBS’ workforce. As counsel for petitioner conceded at oral argument, however, the FCC has never used (or, as far as we know, ever been asked to use) a “person/month” method of calculation. Judge Robinson suggests that this method has the advantage of “factorpng] in the length of the employees’ stay, the shortness of which might be due to intentional discrimination.” Diss. op. at 264 of 193 U.S.App.D.C. n.92, at 649 of 595 F.2d n.92. Yet as such thé “person/month” mode of calculation is but a sophisticated version of the “revolving door” argument which, as the dissent concedes, id. at 268 of 193 U.S.App.D.C. n.117, at 653 of 595 F.2d n.117, CAA was obliged to present to the Commission. See pp. 247-248 of 193 U.S.App.D.C., pp. 632-633 of 595 F.2d infra. It might be wise for the FCC to adopt “person/month” analysis, but this is precisely the type of argument which Congress has instructed petitioners to present in the first instance to the Commission and not to us.

43 .Of the eight Asians not included in KCBS’ employment reports, p. 241 of 193 U.S.App.D.C., p. 626 of 595 F.2d supra, seven had left the station by October 1975; four had remained at KCBS for only three months.

44 . CAA also contends that the KCBS’ Asian employees were confined to lower job categories. This contention, made for the first time at oral argument, is frivolous. See note 13 supra.

45 . Because the “revolving door” allegation was not made until the eleventh hour, the discovery that CAA has sought throughout this litigation bears no relation to the question about which it now says discovery was required. CAA’s 98-question “Employment Questionnaire” did not address the “revolving door” problem, but dealt exclusively with KCBS’ affirmative action program.

46 . Church of Christ I, 123 U.S.App.D.C. at 340, 359 F.2d at 1006.

47 . 47 U.S.C. § 405 (1970). See Alianza, 176 U.S.App.D.C. at 260, 539 F.2d at 739:

Raising [an] argument for the first time before this court . . . does violence . to the scheme of agency-court partnership contemplated by the Communications Act. The Commission must be given a fair opportunity to pass on a novel legal or factual argument, either initially or on a petition for reconsideration, before it can be brought before a reviewing court. Otherwise, the reviewing court would in effect be exercising primary jurisdiction over any issue not raised in front of the agency.

(footnotes omitted).

48 . CAA filed this appeal on 5 December 1975, three days before the expiration of the period in which to petition for reconsideration. At oral argument, CAA endeavored to excuse its precipitousness by arguing that petitioning for reconsideration would have been “futile.” Whatever the worth of a “futility” argument in general, see Office of Communication of the United Church of Christ v. FCC, 150 U.S.App.D.C. 339, 343—44, 465 F.2d 519, 523-24 & n.17 (1972), it is uncompelling here “in the absence of any concrete indication that reconsideration would have been futile.” Action for Children’s Television v. FCC, 183 U.S.App.D.C. 437, 448, 564 F.2d 458, 469 (1977).

49 . The FCC apparently believed that KONO’s unzealous prosecution of its affirmative action plan wholly accounted for these employment disparities and that a prospective remedy was therefore proper. See 56 F.C.C.2d at 786-87. The FCC’s conclusion rests on the assumption that unzealous prosecution of an affirmative action plan can never constitute evidence of intentional discrimination sufficient to require a renewal hearing. We have never decided the validity of this assumption, and we do not need to decide it here, for in this case there was absolutely no evidence to support the FCC’s belief. On the facts before it, the Commission could but speculate as to whether the disparities owed to intentional discrimination, unintentional discrimination, or chance. Judging from the apparent success of FCC monitoring in this case, one might argue with the benefit of hindsight that the Commission’s speculations were correct: the percentage of Mexican-Americans in KONO’s workforce increased to 26% in 1976 and 32% in 1977. See Letter of FCC Secretary Vincent J. Mullins, supra note 33, at 10 n.4. Yet even ignoring the fact that KONO’s enhanced EEO efforts were carried out “under the gun,” post-term improvements do not necessarily dispose of allegations that a station engaged in intentional discrimination during the license term. This was the question the'FCC neglected to investigate; what weight the FCC should accord KONO’s post-term improvements in answering this question on remand is a matter we leave to the Commission’s sound discretion.

50 . Our disposition of this case is not inconsistent with our disposition of Black Broadcasting. In Black Broadcasting, there were responsible, contested claims of overt discrimination, as well as minority employment outside the zone of reasonableness and an ineffective affirmative action plan. 181 U.S.App.D.C. at 184, 186, 556 F.2d at 62, 64. Under these circumstances, we concluded that a substantial and material question concerning the licensee’s character qualifications had been established, and ordered that the application be designated for a renewal hearing. Id. at 186, 187, 556 F.2d at 64, 65. In Bilingual II, minority employment is only slightly outside the zone of reasonableness and there are no allegations of overt discrimination. Under these circumstances, we conclude that at most a possible inference of employment discrimination has been established, and that this factual uncertainty may be capable of resolution by methods short of a full-scale renewal hearing, e. g., by further FCC investigation. See note 34 supra.

51 . See p. 245 of 193 U.S.App.D.C., p. 630 of 595 F.2d supra.

52 . See, e. g., FPC v. Idaho Power Co., 344 U.S. 17, 20, 73 S.Ct. 85, 87, 97 L.Ed. 15 (1952) (“[T]he guiding principle ... is that the function of the reviewing court ends when an error of law is laid bare. At that point the matter once more goes to the Commission for reconsideration.”); FCC v. Pottsville Broadcasting Co., 309 U.S. 134, 143, 60 S.Ct. 437, 441, 84 L.Ed. 656 (1940) (“[The] differences in origin and function [between courts and administrative agencies] preclude wholesale transplantation of the rules of procedure . which have evolved from the history and experience of courts. . . . [Agencies] should be free to fashion their own rules of procedure and to pursue methods of inquiry capable of permitting them to discharge their multitudinous duties.”) (footnote omitted).

53 . See p. 245 of 193 U.S.App.D.C., p. 630 of 595 F.2d & note 37 supra.

54 . See FCC News, 12 May 1977.

55 . See Citizens Communications Center, 61 F.C.C.2d 1112, 1126-27 (1976):

[W]e do not believe that firm control could be effectively exercised over the numerous requests that would in all probability be received if our discovery rules were expanded to the extent suggested by petitioner. Each year the Commission receives a substantial number of petitions or complaints against broadcast licensees. Although we would not anticipate that every petitioner or complainant would request discovery, it seems clear to us that if a substantial number did so it would require an inordinate amount of time and effort to determine whether the requests would properly lie for the production of such records.

56 . The FCC may revoke a station’s license for false statements knowingly made in connection with applications for licenses, or modifications or renewals thereof. 47 U.S.C. § 312(a)(1) (1970). See FCC v. WOKO, Inc., 329 U.S. 223, 227, 67 S.Ct. 213, 91 L.Ed. 204 (1946).

57 . Lorain Journal Co. v. FCC, 122 U.S.App.D.C. 127, 133, 351 F.2d 824, 830 (1965).

58 . Nondiscrimination in the Employment Policies and Practices of Broadcast Licensees, 60 F.C.C.2d 226, 249-52 (1976). We commented hopefully on this FCC initiative in NOW. See 181 U.S.App.D.C. at 78 & n.88, 81 n.103, 555 F.2d at 1015 & n.88, 1018 n.103.

59 . Petitions for Rulemaking to Amend FCC Form 395 and Instructions, 66 F.C.C.2d 955 (1977). In this Notice the FCC aired various proposals for making the job categories listed on the 395 Form reflect more realistically the structure of the broadcast industry, and for requesting information about pay levels within job categories. The Commission also invited comments on “the possible inclusion of additional information which could be relevant to [the Commission’s EEO program] and the means by which such information could be solicited.” Id. at 959. Examples of additional information that might be considered for inclusion are the names and addresses of individual minority employees, and the types of jobs they hold. If petitioners to deny had access to this information, they could investigate possible charges of overt discrimination without disturbing employees on the job. Divulgence of such information, of course, might run afoul of the Privacy Act, and its inclusion in any event is within the ultimate discretion of the Commission.

60 .160 U.S.App.D.C. at 393, 492 F.2d at 659.