United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Filed June 19, 2001
No. 00-1094
MD/DC/DE Broadcasters Association, et al.,
Petitioners
v.
Federal Communications Commission and
United States of America,
Respondents
Minority Media and Telecommunications
Council, et al.,
Intervenors
Consolidated with
00-1198
On Petitions for Rehearing
---------
Before: Ginsburg, Sentelle and Henderson, Circuit
Judges.
Opinion for the court filed by Circuit Judge Ginsburg.
Ginsburg, Circuit Judge: The respondents in this case, the
Federal Communications Commission and the United States;
one of the petitioners, the United Church of Christ; and the
intervenors, the National Organization for Women and the
Minority Media and Telecommunications Council, have each
petitioned for rehearing. All but MMTC seek rehearing of
the court's decision not to sever Option B from the Commis-
sion's EEO rule after holding that only that aspect of the
challenged rule was unconstitutional. The NOW seeks re-
hearing of the court's decision not to sever all references in
the rule to minorities and thereby leave the rule intact with
respect to women. Only the UCC and the Intervenors seek
rehearing of the court's underlying conclusion that Option B
is unconstitutional.*
The only issue about which the various petitions raise any
points that were not fully considered in our prior opinion is
the severability of Option B. For the reasons set forth below,
__________
* Our dissenting colleague argues that the constitutional question,
too, merits reconsideration, despite the Commission's decision not
to seek rehearing on that issue. In so arguing, the dissent re-
peatedly claims the Commission's only goal is "broad outreach." As
explained in the panel opinion, however, if the Commission's goal
were truly broad outreach, then it could measure compliance by
looking at a broadcaster's outreach efforts rather than -- as it
does -- by collecting data on the race and sex of applicants and
investigating any broadcaster producing "few or no" women and
minorities in its applicant pools. See Review of the Commission's
Broadcast Equal Employment Opportunity Rules and Policies, 15
F.C.C.R. 2329, p 120 (2000) (R&O). On remand, of course, the
Commission is free to revise its EEO rule to make broad outreach
rather than the race and sex of applicants the measure of compli-
ance.
we adhere to our original conclusion that Option B is not
severable and hence deny the petitions for rehearing.
* * *
Before arguing that the panel erred in vacating the entire
EEO rule rather than vacating Option B alone, the Commis-
sion acknowledges that severance is proper in a case where,
as here, the agency has "state[d] its intent [that an unconsti-
tutional portion of a regulation be severed]," only "when such
intent is rational, i.e., ... when 'the remainder of the regula-
tion could function sensibly without the stricken provision.' "
FCC Pet. for Rehearing at 1 (quoting MD/DC/DE Broadcast-
ers, 236 F.3d at 22); see also K-Mart Corp. v. Cartier, Inc.,
486 U.S. 281, 294 (1988).* In this case, the court recognized
that in the rulemaking proceeding the Commission had ex-
pressed its intent as a general preference for severance. See
MD/DC/DE Broadcasters, 236 F.3d at 22 (citing Report &
Order, 15 F.C.C.R. 2329, p 232 (2000) (R&O) ("If any provi-
sion of the rules ... [is] held to be unlawful, the remaining
portions of the rules ... shall remain in effect"). The court
concluded, however, that the rule could not, without Option B,
sensibly serve the goals for which it was designed.
The Commission marshals three reasons that, in its view,
undermine our conclusion. First, citing paragraph 113 of the
decision under review, the Commission argues that it "clearly
stated that Option A was sufficient by itself to achieve the
Commission's goals." See FCC Pet. for Rehearing at 10-11
(emphasis supplied). That, however, is not quite so.
The Commission had two goals in adopting its EEO rule:
It sought to "ensur[e] broad outreach [in recruitment] while
affording broadcasters flexibility in designing their EEO pro-
grams." R&O at p 78. In paragraph 113 of the Report and
Order, in which the Commission now claims that it "clearly
__________
* The dissent questions the panel's interpretation of K-Mart and
produces a passel of arguments. We address here all the argu-
ments raised in the petitions.
stated" that Option A alone could accomplish both its goals,
the Commission actually said this:
We believe that our goal of ensuring that broadcasters
engage in broad outreach so that all qualified job candi-
dates are informed of employment opportunities in the
industry can be accomplished through compliance with
[Option A], without requiring the collection or reporting
to the Commission of applicant pool data.... However,
if a broadcaster wishes to avail itself of the option of
dispensing with the supplemental recruitment measures
[prescribed in Option A] and designing its own program
[pursuant to Option B], we do not think that it is
unreasonable to require it to collect applicant pool data
demonstrating that its outreach efforts are inclusive.
Id. at p 113 (emphasis added). As can readily be seen, the
Commission, despite its present argument to the contrary, did
not state -- "clearly" or otherwise -- that it could achieve
both its goals with Option A alone; at most, it stated that it
believed it could achieve one of its two goals, namely ensuring
broad outreach. It said nothing about the sufficiency of
Option A in achieving the Commission's other goal, namely
"affording broadcasters flexibility."
Second, the Commission argues that in a footnote appended
to an order denying reconsideration of the rule it implicitly
indicated that Option A could function alone. See Reconsid-
eration Order, 15 FCC Rcd. at 22555 n. 19. In that footnote
the Commission stated that if the court should hold the data
collection requirement in Option B unconstitutional, then only
that option should be invalidated. The conclusory statement
in the Reconsideration Order, however, says barely more on
this issue than does the Report and Order under review.
Again, for the Commission to say that it intends that the
court sever Option B if necessary is not to say that the court's
decision to do so would leave a sensible regulation in place.
As we discuss further below, it would not.
Third, counsel for the Commission argues that, even if the
Commission did not previously make clear that in its view
Option A could function sensibly as a freestanding EEO rule,
it has done so now in its petition for rehearing. In that
petition, Commission counsel unequivocally states that "the
Commission would have adopted the remainder of the EEO
rule even without Option B." The Federal Communications
Commission is a collegial body, however; it speaks through
its orders, not through counsel's filings. The dissent points
to a press release issued by a single Commissioner in which
she refers to the petition for rehearing as an action of "the
Commission." The same press release, however, cautions
that "Release of the full text of a Commission order consti-
tutes official action." Yet counsel points to no order taking
the view espoused in the petition for rehearing. Further-
more, counsel's claim is facially implausible.
Recall that in the decision under review, the Commission
told us that it had two goals -- ensuring broad outreach and
affording flexibility. It told us that Option A could satisfy the
goal of achieving broad outreach. And it told us that Option
B was added in order to afford broadcasters flexibility. For
example, in announcing that it would not exempt stations in
small markets from EEO obligations, the Commission ex-
plained:
While we believe that small market stations should be
granted some relief from EEO requirements ... we
believe that such relief is already built into the new
broadcast EEO Rule, which affords flexibility to tailor
EEO programs to a station's particular circumstances,
including market size. For instance, stations in small
markets may find that they need fewer recruitment
sources to achieve broad outreach than might be the case
in larger markets. Also, because stations in smaller
markets are likely to attract fewer applicants, they may
find [Option B] a less burdensome method of assessing
the effectiveness of their outreach.
R&O at p 126; see also id. at p 104.
Throughout the Report and Order, the Commission re-
peatedly considered various proposals and evaluated them
with respect both to their benefits in promoting outreach and
to the effect they would have upon broadcasters' flexibility.
See, e.g., R&O at p 88 (permitting broadcasters to engage in
joint recruiting and noting "there is considerable value in
allowing individual broadcasters flexibility"); id. at p 95 (re-
jecting proposal to send notice of openings to all potential
sources of job applicants); id. at p 97 (granting broadcasters
flexibility in selecting form of notice); id. at p 110 (expressing
desire to "minimize burdens on broadcasters, especially
smaller broadcasters"); id. at p 121 (same); id. at p 126
(rejecting proposal for relief in light of flexibility afforded to
broadcasters, and emphasizing role of Option B to this end);
id. at p 131 (rejecting proposal for relief in light of flexibility
afforded under rule). Thus, Option B played an integral part
in the Commission's evaluation of the rule as a whole; indeed,
in the entire Report and Order the Commission never once
considered the implications of promulgating an EEO rule
without Option B -- except insofar as it implied that without
Option B broadcasters would not have sufficient flexibility.*
Finally, Commission counsel argues that vacating the rule
in its entirety will, by forcing the Commission to repromul-
gate Option A as a new rule, simply cause the Commission
expense and delay. Under the Administrative Procedure Act,
however, we cannot consider that a drawback. As explained
above, in the decision under review the Commission described
its two goals and the role that the two options played in
effectuating them. In light of that decision, it is clear that
severing one of the two options and thereby making the other
mandatory would create a rule that the Commission did not
consider and which, according to the Commission's own analy-
sis in the course of rulemaking, would not have accomplished
the Commission's two goals as it described them. In a
renewed rulemaking effort the Commission may adopt other
measures to accommodate the concerns it expressed about
broadcasters' need for flexibility in general and about the
burden Option A would impose upon broadcasters in small
__________
* The dissent does not address the Commission's reliance, in
denying various exemptions, upon the flexibility provided in the rule
as a whole and in particular by Option B.
markets in particular. Or the Commission may change its
goals. Upon the record as it stands, however, retaining
Option A without further consideration -- and presumably
further notice and comment -- would leave in force a rule
that, in view of the Commission's own stated goals, would be
arbitrary and capricious. Accordingly, the petition for re-
hearing is
Denied.
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Filed On: June 19, 2001
No. 00-1094
MD/DC/DE Broadcasters Association, et al.,
Petitioners
v.
Federal Communications Commission and
United States of America,
Respondents
Minority Media and Telecommunications
Council, et al.,
Intervenors
Consolidated with
00-1198
---------
BEFORE: Edwards, Chief Judge, Williams, Ginsburg,
Sentelle, Henderson, Randolph, Rogers, Tatel, and Garland,
Circuit Judges.
O R D E R
Petitioner's, respondents', and intervenors' petitions for
rehearing en banc and the responses thereto have been
circulated to the full court. The taking of a vote was request-
ed. Thereafter, a majority of the judges of the court in
regular active service did not vote in favor of the petitions.
Upon consideration of the foregoing, it is
ORDERED that the petitions be denied.
Per Curiam
FOR THE COURT:
Mark J. Langer, Clerk
Circuit Judge Garland did not participate in this matter.
A statement of Circuit Judge Tatel, joined by Chief Judge
Edwards and Circuit Judge Rogers, dissenting from the
denial of rehearing en banc is attached.
Tatel, Circuit Judge, joined by Edwards, Chief Judge, and
Rogers, Circuit Judge, dissenting from the denial of rehear-
ing en banc: "A facial challenge ... is, of course, the most
difficult challenge to mount successfully, since the challenger
must establish that no set of circumstances exists under
which the Act would be valid." United States v. Salerno, 481
U.S. 739, 745 (1987). The same principle governs facial
challenges to regulations. See INS v. Nat'l Ctr. for Immi-
grants' Rights, Inc., 502 U.S. 183, 188 (1991). In this case,
the panel found that Option B could not be applied without
harming white males and therefore declared it facially uncon-
stitutional. Because in so ruling the panel departed from
basic principles of judicial restraint--going beyond the rec-
ord, speculating about how the Commission will enforce the
rule and how broadcasters might react, and refusing to defer
to the Commission's reasonable interpretation of its own
rule--I respectfully dissent from the denial of the three
suggestions for rehearing en banc. See also FCC Pet. for
Reh'g & Suggestion for Reh'g En Banc at 3 ("The limited
scope of our rehearing petition ... should not be misread as
reflecting the Commission's agreement with the Court's con-
clusion that Option B pressures broadcasters to recruit wom-
en and minorities in violation of the equal protection compo-
nent of the Fifth Amendment. The Commission disagrees
with the Court's conclusions in that regard and would wel-
come grant of rehearing on the Court's equal protection
analysis.").
I agree with the panel that Adarand "requires strict scruti-
ny only of governmental actions that lead to people being
treated unequally on the basis of their race." MD/DC/DE
Broadcasters Ass'n v. FCC, 236 F.3d 13, 20 (D.C. Cir. 2001).
But I do not agree that, on its face, Option B--which is
entirely optional--triggers strict scrutiny. Contrary to the
panel opinion, Option B merely requires outreach to the
entire community, and broadcasters can accomplish such out-
reach without reducing their recruitment of white males.
"We require," the Commission said of the entire rule, that
broadcasters "reach out in recruiting new employees beyond
the confines of their circle of business and social contacts to
all sectors of their communities." Review of the Commis-
sion's Broadcast Equal Employment Opportunity Rules and
Policies, 15 F.C.C.R. 2329, p 3 (2000) ("R&O"). Broadcasters
choosing Option B may "design their own outreach program
to suit their needs, as long as they can demonstrate that their
program is inclusive, i.e., that it widely disseminates job
vacancies through the local community." Id. at p 104. The
Commission explained further:
[W]e believe that the objective of ensuring that minority
and female applicants have the opportunity to apply for
positions ... may be achieved without a specific require-
ment that broadcasters in every situation use recruit-
ment methods that specifically target those groups. Out-
reach that is truly broad and inclusive will necessarily
reach minorities and females.
Id. at p 77. Moreover, Option B requires submission of racial
data only to enable "evaluat[ion of] whether the program is
effective in reaching the entire community." Id. at p 104.
Although "few or no" minority or female applicants "may be
one indication ... that the station's outreach efforts are not
reaching the entire community," id. at p 120, the Commission
emphasized that having few or no female or minority appli-
cants would not be dispositive in its analysis of the adequacy
of a broadcaster's recruitment program:
[T]here is no requirement that the composition of appli-
cant pools be proportionate to the composition of the
local workforce.... We may ultimately determine that
outreach efforts are reasonably designed to reach the
entire community, even if few females or minorities
actually apply for openings. Conversely, the fact that a
sizeable number of females or minorities have applied for
openings will not necessarily establish the inclusiveness
of the station's efforts. Also, we recognize that an
employer cannot control who applies for jobs.
Id.
Broadcasters electing Option B could thus satisfy their
obligation simply by undertaking broad, non-racially-targeted
recruiting. For example, advertising in a local newspaper
read by both minorities and nonminorities could reach "the
entire community." Id. No record evidence suggests that
such advertising would reduce the number of white males
receiving job information. Indeed, broad outreach might
reach more white males.
Because there exist "circumstances ... under which"
broadcasters can comply with Option B with no adverse effect
on white males, the broadcasters' facial challenge should have
failed. See Salerno, 481 U.S. at 745. The panel should have
dismissed their petition, leaving them free to bring an as-
applied challenge when and if the Commission applies the
rule in a discriminatory manner. Instead, misinterpreting
Option B and engaging in its own fact-finding, the panel
found that Option B would inevitably curtail recruitment of
white males, and so subjected it to strict scrutiny.
To avoid the fact that broadcasters could totally ignore
Option B, the panel said "the Commission does not argue that
Option B creates no pressure to recruit women and minorities
because a licensee could always elect Option A." 236 F.3d at
20 n.*. In its Report and Order, however, the Commission
stated precisely that:
[W]e note that the alternative recruitment program is
completely optional; any employer who prefers not to
collect data concerning the race, ethnicity or gender of
its applicants can comply with [Option A's requirements],
none of which requires the collection of such data. No
broadcaster or cable entity has cause to complain about a
program with which it is not required to comply.
R&O at p 224. True, the Commission did not make this
argument to the panel, but given that the broadcasters chal-
lenged the constitutionality of Option A as well as B, it is
understandable that the Commission never argued that Op-
tion B is not coercive because of the presence of Option A.
Although the Commission could have so argued in the alter-
native, the fact that it didn't still does not justify ignoring the
Rule's plain language.
To avoid the fact that nothing on the face of Option B
requires that "people be[ ] treated unequally on the basis of
their race," MD/DC/DE Broadcasters, 236 F.3d at 20, the
panel found that Option B "pressure[s]" broadcasters to
"focus their recruiting efforts upon women and minorities, at
least until those groups generate a safe proportion of the
licensee's job applications." Id. at 19-20. According to the
panel, this will occur because the Commission, having "life
and death power" over broadcasters and "a long history of
employing[ ] 'a variety of sub silentio pressures and "raised
eyebrow" regulation,' " id. at 19 (quoting Cmty.-Serv. Broad.
of Mid-Am., Inc. v. FCC, 593 F.2d 1102, 1116 (D.C. Cir.
1978)), "promises to investigate any licensee that reports 'few
or no' applications from women or minorities." Id.; see also
Supplemental Op. at 2 n.*. Licensees, the panel found,
"reasonably might (and prudently would) conclude" that the
Commission's "focus upon the race and sex of applicants
belies its statement ... that its only goal is that licensees
recruit with a 'broad outreach.' " MD/DC/DE Broadcasters,
236 F.3d at 19. The panel concluded that the Commission "is
interested in results, not process, and is determined to get
them." Id.
The panel's analysis finds no support in the record. The
Commission never "promise[d]" to investigate licensees that
report few or no applications from women or minorities. The
only record reference to the Commission's investigative prior-
ities is its statement that: "[E]ach year we will randomly
select for audit approximately five percent of all licensees....
We may also conduct an inquiry if the Commission has
evidence of a possible violation of the EEO Rule." R&O at
p 145 (emphasis added). Moreover, the Commission made
clear that, in evaluating a broadcaster's outreach program, it
would not view as dispositive the number of women and
minorities in the broadcaster's applicant pool. See supra at
2-3 (quoting R&O at p 120). Because broadcasters could
thus accomplish broad outreach without race-targeted recruit-
ing, speculation that some broadcasters, imagining pressure
from the Commission or misreading the agency's intentions,
might go beyond what Option B requires is no reason to
declare it facially unconstitutional. Finally, the panel had no
basis for suspecting the Commission's intentions. Not only
do the phrases "sub silentio pressures" and " 'raised eyebrow'
regulation" describe Commission behavior occurring over two
decades ago, see supra at 4, but nothing in the record of this
case indicates that such behavior continues today or that the
Commission's goal is anything other than what it declares it
to be: broad outreach.
It is possible, as the panel suggested with its own hypothet-
ical, that some broadcasters might redirect recruiting efforts
so that "prospective nonminority applicants who would have
learned of job opportunities but for the Commission's di-
rective now will be deprived of an opportunity to compete
simply because of their race." 236 F.3d at 21. Yet Option B
does not require this result, nor does record evidence support
the panel's assumption that nonminorities will inevitably re-
ceive less job information. Even assuming, as the panel
speculated, that recruiting budgets are "fixed in the short
run," id. at 20 & n.**, there is no reason to believe that
broadcasters would not reallocate recruiting expenditures
without depriving nonminorities of job information. Nor does
record evidence support the panel's assumption that "even if
an employer increases its recruiting budget," it will necessari-
ly use those additional funds for recruiting that is "targeted
at minorities." Id. at 20 n.**. In fact, the Commission
expressly declined to require targeted recruiting. See supra
at 2 (quoting R&O at p 77). Of course, community-wide
outreach could mean that white males would face job competi-
tion from women and minorities, but not even the panel
suggested that this would trigger strict scrutiny.
Determining whether an outreach program crosses the line
from expanding opportunities for minorities to disadvantaging
nonminorities, thus triggering strict scrutiny--and if so
whether the program survives--are difficult issues that nei-
ther we nor the Supreme Court has yet considered. We
should be especially careful to resolve these important ques-
tions on a fully developed record, not on the basis of appellate
fact-finding or broadcaster paranoia.
* * *
The panel's decision that Option B is not severable also
warrants en banc review. See FCC Pet. for Reh'g & Sugges-
tion for Reh'g En Banc. The decision conflicts with circuit
precedent and, like the panel's resolution of the equal protec-
tion issue, rests on the panel's rejection of the Commission's
reasonable interpretation of its own Rule.
Agency intent has always been the touchstone of our
inquiry into whether an invalid portion of a regulation is
severable. See, e.g., Davis County Solid Waste Mgmt. v.
EPA, 108 F.3d 1454, 1459 (D.C. Cir. 1997); North Carolina v.
FERC, 730 F.2d 790, 795-96 (D.C. Cir. 1984). In this case,
the panel acknowledged that "the Commission clearly intends
that the regulation be treated as severable." 236 F.3d at 22
(citing the Commission's statement that "[i]t is our intention
... that, if any provision of the rules ... [is] held to be
unlawful, the remaining portions of the rules not deemed
unlawful ... shall remain in effect to the fullest extent
permitted by law," R&O at p 232). But relying on K Mart
Corp. v. Cartier, Inc., 486 U.S. 281, 294 (1988), the panel
undertook an additional inquiry, asking "whether the remain-
der of the regulation could function sensibly without the
stricken provision." 236 F.3d at 22. Answering no, the panel
invalidated the entire Rule. According to the panel, "[t]he
core of the rule, by Commission design, is to provide broad-
casters with two alternatives," id., a goal unattainable by
Option A alone.
K Mart concerned a different question than the one pre-
sented here. There, the question was whether a statute's
function would be impaired if, after invalidating a portion of
an implementing regulation, the Court left the rest of the
regulation in place. 486 U.S. at 294. Here, the question is
whether the Commission's Rule can function without Option
B. As in the case of any agency interpretation of its own
regulation, this is an issue on which we owe the Commission's
views special deference. See Trinity Broad. of Fla., Inc. v.
FCC, 211 F.3d 618, 625 (D.C. Cir. 2000) ("[W]e accord [the
Commission's] interpretation of its own regulations a high
level of deference, accepting it unless it is plainly wrong.")
(internal citation omitted).
Regardless of whether the panel may have had cause to
doubt whether Option A alone could have accomplished the
Commission's goals, such doubt no longer exists. In its
petition for rehearing, the Commission makes it unmistakably
clear not only that it "intended Option B to be severable from
the remainder of the rule," see FCC Pet. for Reh'g &
Suggestion for Reh'g En Banc at 10, but also that Option A
alone can accomplish the agency's "core" goal of ensuring
broad outreach. Id. at 13. When agencies clarify their
intentions regarding severability through petitions for rehear-
ing, we normally correct our opinion and reinstate the valid
portions of the regulation. See Virginia v. EPA, 116 F.3d
499, 500-01 (D.C. Cir. 1997) (reinstating part of a rule in
response to EPA's petition for rehearing explaining that the
part was severable from sections invalidated in the original
panel decision); Davis County Solid Waste Mgmt., 108 F.3d
at 1455-56, 1459-60 (same). In this case, however, the panel
summarily rejects the Commission's clarification, attributing
it to "counsel's" position. See Supplemental Op. at 4-5
("counsel for the Commission argues ... "; "Commission
counsel unequivocally states ... "; "counsel's claim"). To the
extent the panel is implying that the petition does not reflect
the Commission's views and is thus unworthy of deference,
that notion is flatly inconsistent with decisions of the Supreme
Court and the law of this circuit. In Auer v. Robbins, 519
U.S. 452 (1997), the Supreme Court held that unless a court
has "reason to suspect" that an interpretation of a regulation
set forth in an agency brief does "not reflect the agency's fair
and considered judgment," the agency's interpretation de-
serves deference. Id. at 462; see also Bigelow v. Dep't of
Def., 217 F.3d 875, 876, 878 (D.C. Cir. 2000) (deferring to an
agency interpretation of a regulation set forth for the first
time in a brief signed only by a United States Attorney). In
this case, we have no basis for suspecting that the rehearing
petition does not "reflect the [Commission's] fair and consid-
ered judgment." The filing is signed by the Commission's
"Acting General Counsel," the Justice Department has told us
that it "defer[s] to the FCC on the importance of the sever-
ability issue," Resp. to Pets. for Reh'g at 7 (emphasis added),
and Commissioner Gloria Tristani, in a press release issued
the day the petition was filed, referred to the action of the
"Commission." Press Release, Commissioner Gloria Tristani,
Re: MD/DC/DE Broadcasters Ass'n v. FCC Pet. for Reh'g
(Mar. 2, 2001) ("Today, the FCC petitioned the D.C. Circuit
Court for a partial rehearing of its January 16, 2001, opinion
invalidating our EEO outreach rules for broadcasters. While
I support the submission as far as it goes, I am disappointed
the Commission declined to seek review of the entire deci-
sion.") (emphasis added).
In addition, the panel has no reason for finding the Com-
mission's position "implausible." Supplemental Op. at 5. Al-
though the panel points to a few paragraphs in the Report
and Order suggesting that Option A by itself might provide
less flexibility than Options A and B together, there is enough
flexibility in Option A alone to demonstrate that the Commis-
sion's statement that it would have promulgated Option A by
itself is not "plainly wrong." Trinity Broad., 211 F.3d at 625.
The thirteen program choices within Option A, the Commis-
sion explained, avoided "inflexible requirements" and "en-
able[d] broadcasters to select the approaches that they be-
lieve will be most effective in their situations." R&O at p 100.
The Commission, moreover, emphasized that Option A would
independently meet its outreach goals. See id. at p 113.
According to the Commission, it reluctantly included Option B
in response to broadcasters' urging: "We are willing to allow
broadcasters to forego the supplemental recruitment mea-
sures [of Option A] and to design their own outreach program
to suit their needs, as long as they can demonstrate that their
program is inclusive, i.e., that it widely disseminates job
vacancies throughout the local community." Id. at p 104
(emphasis added). As the Commission argues, the "core of
the rule" is Option A. See FCC Pet. for Reh'g & Suggestion
for Reh'g En Banc at 13.
There is, in other words, no "substantial doubt" that the
Commission would have adopted Option A "on its own." See
Davis County Solid Waste Mgmt., 108 F.3d at 1459. In
reaching a different conclusion, the panel improperly substi-
tuted its own views for the Commission's.