Rainbow/Push Coalition v. Federal Communications Commission

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued December 2, 2004 Decided February 4, 2005

No. 01-1072

RAINBOW/PUSH COALITION,
APPELLANT

v.

FEDERAL COMMUNICATIONS COMMISSION,
APPELLEE

CURATORS OF THE UNIVERSITY OF MISSOURI,
INTERVENOR

No. 04-1084

RAINBOW/PUSH COALITION,
APPELLANT

v.

FEDERAL COMMUNICATIONS COMMISSION,
APPELLEE

CURATORS OF THE UNIVERSITY OF MISSOURI,
INTERVENOR
 2

Appeals of Orders of the
Federal Communications Commission

William L. Lowery argued the cause for the appellant. Holly
L. Saurer and David E. Honig were on brief.
Jacob M. Lewis, Attorney, Federal Communications
Commission, argued the cause for the appellee. John A.
Rogovin, General Counsel, Richard K. Welch and Daniel M.
Armstrong, Associate General Counsel, and Lisa E. Boehley,
Counsel, Federal Communications Commission, were on brief.
Jane E. Mago, Assistant General Counsel, and C. Grey Pash,
Jr., Counsel, Federal Communications Commission, entered
appearances.
Kathryn R. Schmeltzer argued the cause for the intervenor.
Barry H. Gottfried was on brief.
Before: HENDERSON, ROGERS and TATEL, Circuit Judges.
Opinion for the court filed by Circuit Judge HENDERSON.
Dissenting opinion filed by Circuit Judge ROGERS.
KAREN LECRAFT HENDERSON: Appellant Rainbow/PUSH
Coalition (Coalition) appeals two decisions of the Federal
Communications Commission (FCC, Commission) which
granted the application of the Curators of the University of
Missouri (University) to renew a license to operate radio station
KWMU-FM in St. Louis, Missouri. In the first decision the
FCC granted the application subject to a Notice of Apparent
Liability (NAL) against the University in the amount of $8,000,
denying the Coalition’s petition to deny renewal based on
allegations of discriminatory employment practices, Curators of
Univ. of Mo., No. 00-445, 16 F.C.C.R. 1174 (2001); in the
second the Commission granted the University’s petition to
reconsider and rescinded the NAL, Curators of Univ. of Mo.,
 3

No. 03-303, 19 F.C.C.R. 3030 (2004). In each decision the
Commission rejected the Coalition’s request to designate the
application for hearing pursuant to 47 U.S.C. § 309(e) and on
appeal the Coalition asks that we remand for just such a hearing.
Without reaching the merits of the Commission’s decisions, we
dismiss both of the appeals because the Coalition has failed to
establish it has constitutional standing to bring them.
I.
The University filed its license renewal application in
September 1996. In January 1997 Rainbow filed a petition to
deny the application under 47 U.S.C. § 309(d)(1), asserting that
the University had violated the FCC’s Equal Employment
Opportunity (EEO) rule, 47 C.F.R. § 73.2080, by discriminating
on the basis of race in its employment decisions. Appended to
the petition to deny were declarations by one former part-time
employee, Winnie Sullivan, who had filed a discrimination
complaint against the University with the Equal Employment
Opportunity Commission (EEOC) and, subsequently, an
unsuccessful suit for discriminatory termination in the Eastern
District of Missouri, and by two other former employees and
two unsuccessful job applicants who claimed to have been
subjected to discriminatory treatment.1 In the petition, the
Coalition pointed out that the University’s renewal application
made no mention of Sullivan’s discrimination suit. In its
opposition to the Coalition’s petition to deny, the University
responded that it did not believe disclosure of Sullivan’s
complaint was required because her discrimination suit resulted
in a verdict in the University’s favor.
In May 1997 the FCC sent the University a letter asking the
University to explain why it had failed to disclose the Sullivan

1
Also appended was the declaration of Sullivan’s “friend and
companion” purporting to support Sullivan’s discrimination claim.
 4

discrimination complaint in its EEO report (Form 396), which
the University submitted with its renewal application and which
expressly directed the applicant to set out “a brief description of
any complaint which has been filed before any body having
competent jurisdiction under Federal, State, territorial or local
law, alleging unlawful discrimination in the employment
practices of the station,” JA 30. The letter further directed the
University to “identify any other employment discrimination
complaint(s) filed against KWMU-FM during the current license
term.” JA 241. On July 11, 1997 the University submitted an
amendment to its EEO report describing the Sullivan litigation.
On September 5, 1997 Rainbow wrote a letter to the FCC
alleging the University had deliberately misrepresented its
discrimination record by failing to disclose not only Sullivan’s
complaint and lawsuit but also two other EEOC complaints filed
against the University: one by John Schieszer, a former
part-time KWMU news reporter who claimed he suffered
unlawful retaliation, and one by Tessa Abrams (now Marshall),
a black interviewee who claimed the University failed to hire her
on account of her race. On October 2, 1997 the University
submitted a second amendment acknowledging the unsuccessful
EEOC complaint filed by Schieszer but denying any record or
knowledge of a complaint by Abrams.2
In a decision released January 17, 2001 the FCC denied the
Coalition’s petition and approved renewal of the KWMU
license. With regard to the alleged discrimination, the
Commission concluded Rainbow had not established a prima
facie case justifying a hearing because its petition did not
“contain specific allegations of fact sufficient to show . . . that

2
Abrams acknowledged to the Commission that she did not pursue
her complaint beyond its filing with the EEOC and that the EEOC had
informed her it had no record of the complaint. 16 F.C.C.R. at 1177
& n.3
 5

a grant of the application would be prima facie inconsistent
with” the statute’s requirement that “the public interest,
convenience, and necessity will be served” by granting a license
application. 16 F.C.C.R. at 1175 (citing 47 U.S.C. § 309(d)(1)).
The Commission explained that Sullivan’s complaint had been
finally adjudicated—in the University’s favor—and that, with
regard to the other alleged discriminatees, consistent with long-
standing policy and a Memorandum of Understanding between
the FCC and the EEOC, the FCC did not adjudicate their claims
but instead referred them first to the EEOC. The Commission
advised that, “[i]f the individual allegations of employment
discrimination in Rainbow’s petition continue to be actionable,
the Commission will take cognizance of any final determination
of employment discrimination.” 16 F.C.C.R. at 1179 (citing
Pac. & So. Co., 11 F.C.C.R. 8503, 8505 (1996); NBC-TV, 5
F.C.C.R. 2049 (1990); KSDK, Inc., 85 F.C.C. 2d 797 (1981),
reconsideration denied, 88 F.C.C. 2d 1443 (1992); Wash. Radio,
Inc., 88 F.C.C. 2d 1200 (1982)).
With regard to the misrepresentation charge, the FCC found
that the University’s initial application and the first amendment
thereto omitted material facts—respectively, the Sullivan
litigation and Schieszer’s EEOC complaint3 —but found “no
evidence of an intent to deceive that would support a finding of
misrepresentation or lack of candor.” 16 F.C.C.R. at 1180. The
Commission nonetheless made license renewal subject to an
NAL of $8,000 “for willfully omitting material facts in its Form
396 in violation of [47 C.F.R. § 73.1015].” 16 F.C.C.R. at

3
The Commission disregarded the Abrams complaint, noting that
“the licensee states that it has not been able to find any record of such
a complaint and is not aware of any such complaint” and “Rainbow
has no record from the EEOC of such a complaint.” 16 F.C.C.R. at
1180.
 6

1181.4 Rainbow filed a timely notice of appeal of the decision.
The University moved for reconsideration and in an order
released February 17, 2004, the FCC (with two commissioners
dissenting) rescinded the NAL because the University’s
“omissions were not of sufficient gravity to warrant the
assessment of a forfeiture under all of the circumstances.” 19
F.C.C.R. at 3032. Rainbow filed a timely notice of appeal of
this decision as well.
II.
This court has directed that “a petitioner whose standing is not
selfevident [sic] should establish its standing by the submission
of its arguments and any affidavits or other evidence
appurtenant thereto at the first appropriate point in the review
proceeding”—either “in response to a motion to dismiss for
want of standing” or, in the absence of such motion, “with the
petitioner’s opening brief.” Sierra Club v. EPA, 292 F.3d 895,
900 (D.C. Cir. 2002). At this procedural stage, a petitioner
“must demonstrate,” not merely allege, “that there is a

4
Section 73.1015 provides that “[t]he Commission or its
representatives may, in writing, require from any applicant, permittee,
or licensee written statements of fact relevant to a determination
whether an application should be granted or denied” and that “[a]ny
such statements of fact are subject to the provisions of [47 C.F.R.] §
1.17.” Section 1.17, in turn, directs that “no person . . . shall . . . [i]n
any written or oral statement of fact, intentionally provide material
factual information that is incorrect or intentionally omit material
information that is necessary to prevent any material factual statement
that is made from being incorrect or misleading” or “[i]n any written
statement of fact, provide material factual information that is incorrect
or omit material information that is necessary to prevent any material
factual statement that is made from being incorrect or misleading
without a reasonable basis for believing that any such material factual
statement is correct and not misleading.” 47 C.F.R. § 1.17(a).
 7

‘substantial probability’ ” it will suffer injury if the court does
not grant relief. Id. “The petitioner may carry its burden of
production by citing any record evidence relevant to its claim of
standing and, if necessary, appending to its filing additional
affidavits or other evidence sufficient to support its claim.” Id.
at 900-01. Having reviewed the materials the Coalition has
submitted, we conclude that it has not met its burden because it
has not demonstrated the threshold requirement for associational
standing that “at least one of its members would have standing
to sue in his own right.” Rainbow/PUSH Coalition v. FCC, 330
F.3d 539, 542 (D.C. Cir. 2003) (citing Hunt v. Wash. State Apple
Adver. Comm’n, 432 U.S. 333, 343 (1977)).5
To meet this burden the Coalition appended to its opening
brief the affidavit of the Reverend Dr. Sammie Earl Jones, a
Coalition member who for twenty-five years has resided in St.
Louis and been a “regular listener” to KWMU. That Jones is a
member of the station’s listening audience, however, does not
grant “automatic audience standing” to Jones, or through him to
the Coalition, to challenge a license renewal even when it is
alleged the licensee will operate contrary to the public interest.
Rainbow/PUSH Coalition, 330 F.3d at 542. Instead, the
Coalition must demonstrate that it satisfies each of the three
prongs of the well-established test for standing.
“The ‘irreducible constitutional minimum of standing contains
three elements’: (1) injury-in-fact, (2) causation, and (3)
redressability.” Id. (quoting Lujan v. Defenders of Wildlife, 504
U.S. 555, 560-61 (1992)). That is, “ ‘ “to establish standing
under Article III, a complainant must allege (1) a personal

5
An association must also demonstrate that “the interest it seeks to
protect is germane to its purpose” and that “neither the claim asserted
nor the relief requested requires the member to participate in the
lawsuit.” Rainbow/PUSH Coalition v. FCC, 330 F.3d at 542 (citing
Hunt, 432 U.S. at 343).
 8

injury-in-fact that is (2) ‘fairly traceable’ to the defendant’s
conduct and (3) redressable by the relief requested.” ’ ”
Microwave Acquisition Corp. v. FCC, 145 F.3d 1410, 1412
(D.C. Cir. 1998) (quoting SunCom Mobile & Data, Inc. v. FCC,
87 F.3d 1386, 1387-88 (D.C. Cir. 1996) (quoting Branton v.
FCC, 993 F.2d 906, 908 (D.C. Cir. 1993) (quoting Allen v.
Wright, 468 U.S. 737, 751 (1984))), cert. denied, 511 U.S. 1052
(1994)). Further, the injury “must be both ‘concrete and
particularized’ and ‘actual or imminent.’ ” Id. (citing Lujan, 504
U.S. at 560). The Coalition has not identified an injury that
satisfies all of these requirements.
To support its claim of injury, the Coalition first points to
portions of Jones’s affidavit regarding his role as job counselor
with the Coalition. Jones states that the Coalition “undertake[s]
to place job applicants with employers and vice versa” and “to
train young people and guide their transition into the job
market,” that he “perform[s] a good deal of this work
personally” and that “[i]t is a burden on Rainbow/PUSH’s and
[his] own time and resources to keep track of which company
discriminates and which doesn’t, and to have to counsel young
people on how to deal with discrimination when they encounter
it, how to avoid it, and how to fight it.” Jones Aff. ¶ 14.
In Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982), the
United States Supreme Court established that an organization
has constitutional standing to challenge the discriminatory
practices of a defendant if those practices adversely affect the
activities the person or organization undertakes to fight
discrimination. Havens Realty, an organization devoted “to
mak[ing] equal opportunity in housing a reality” in the
Richmond, Virginia area, sent black “testers” to the defendant
real estate company’s apartments and the testers were falsely
told there were no apartments for rent. 455 U.S. at 368.
Because of the real estate company’s discriminatory practice of
“steering” away black renters, the organization alleged, its
 9

efforts to assist minorities gain equal access to housing “ha[d]
been frustrated” and it was required “to devote significant
resources to identify and counteract” the discriminatory
practices. If proven, the Supreme Court held, this would
constitute “concrete and demonstrable injury to the
organization’s activities—with . . . consequent drain on
resources.” 455 U.S. at 379; see also Fair Employment Council
of Greater Washington, Inc. v. BMC Mktg. Corp., 28 F.3d 1268,
1276 (D.C. Cir. 1994) (organization that sent testers to
employment agency had standing to challenge agency’s
discriminatory referral practices based on allegations that
defendants’ practices “interfered with [the organization’s
community outreach and public education, counseling, and
research projects], and [] also required the [organization]
Council to expend resources to counteract [defendant’s] alleged
discrimination,” which “closely track[ed] the claims that the
Supreme Court found sufficient in Havens” (citing Havens, 455
U.S. at 379)); Spann v. Colonial Village, Inc., 899 F.2d 24, 28
(D.C. Cir. 1990) (finding two equal housing organizations had
standing to challenge realty companies’ racially preferential
advertising which “discouraged black home buyers and renters
from considering defendants’ housing and required the
organizations to expend additional resources to identify and
dispel this discouragement”) (citing Havens, 455 U.S. at 379).
Neither Jones nor the Coalition has identified such a specific
injury directly attributable to the University’s alleged
discrimination. Jones says only that he finds it burdensome “to
keep track of which company discriminates and which doesn’t”
and “to counsel young people on how to deal with
discrimination when they encounter it.” Jones Aff. ¶ 14. Unlike
the plaintiff in Havens, he never says that discrimination at
KWMU “frustrates” any of his efforts or that he must expend
“resources to identify and counteract” KWMU’s alleged
discrimination. Indeed, the portion of Jones’s affidavit dealing
with counseling never even mentions KWMU. Thus, so far as
 10

we can tell from Jones’s affidavit, any discrimination at KWMU
would constitute “simply a setback to [his] abstract societal
interest,”Havens, 455 U.S. at 379, in advancing racial equity. 6

6
The Coalition also asserts several other “injuries” described in
J ones’s affidavit but to no more avail. As the Coalition notes, Jones
states that he “would like to be able to recruited and considered [sic]
fairly for employment at KWMU if positions become available for
which [he is] qualified” and would endure “personal indignity” if he
suffered discrimination in such event, Jones Aff. ¶¶ 15-16. This
contingent injury, however, lacks the necessary imminence to confer
standing. See Animal Defense Fund, Inc. V. Espy, 23 F.3d 496, 499-
500 (1994) (psychobiologist who might one day seek employment that
requires laboratory research lacks imminent injury necessary to
challenge regulation interpreting laboratory animal protection statute).
Jones also states he suffered injury as a “taxpayer” whose taxes “are
used to subsidize race discrimination,” Jones Aff. ¶ 21, but he has not
identified the “logical link” between his taxpayer status and the
challenged actions that is required to claim taxpayer standing. See
Flast v. Cohen, 392 U.S. 83, 102-03 (1968). Jones further asserts he
is injured in that the FCC’s failure to sanction the University for its
discrimination omissions gives “minority residents in the St. Louis
Area” the impression neither the University nor the FCC considers
discrimination a “serious” matter, Jones Aff. ¶ 22. This basis too is
insufficient because the “stigmatizing,” “noneconomic” injury caused
by racial discrimination “accords a basis for standing only to ‘those
persons who are personally denied equal treatment,’ ” Allen v. Wright,
468 U.S. 737, 755 (1984) (quoting Heckler v. Mathews, 465 U.S. 728,
739-740 (1984)). Finally, Jones asserts that the FCC’s failure to
address the discrimination “creates a huge disincentive . . . to petition
the FCC for redress of grievances in the future” and “diminishes [the]
ability to persuade the next generation of leaders that it is worth their
time to engage in the moral charge of petitioning their government, or
other major institutions in society, for redress of grievances,” Jones
Aff. ¶ 28. Again, Jones does not explain how this generalized
complaint constitutes a concrete injury to him. See KERM, Inc. v.
FCC, 353 F.3d 57, 61 (D.C. Cir. 2004) (complainant “cannot establish
 11

It is true that elsewhere in the affidavit Jones alleges that
KWMU is “one of the benchmark institutions in the
community,” Jones Aff. ¶ 8, and the counseling paragraph
claims that “[i]f major institutions, . . . like public radio stations,
were to stop discriminating overnight, an enormous burden . . .
would be lifted from [his] shoulders,” id. ¶ 14. Yet Jones never
explains how an end to discrimination at this particular
“benchmark institution[]” would perceptibly affect his activities.
Nor do the affidavits of alleged victims of discrimination at
KWMU help the Coalition as nothing in the record links the
affiants’ experiences with KWMU to Jones’s counseling efforts.
Contrary to what the dissent says, see Dissent at 5, we do not
suggest that an affidavit must contain any “magic words” to
support an assertion of standing by the affiant’s organization.
Jones’s affidavit falls short not because the discussion of job
counseling omits the name “KWMU” but because, contrary to
the law of this circuit, the affidavit never even states, let alone
explains how, the alleged discrimination by KWMU in
particular affects Jones’s counseling and outreach efforts,
reducing their effectiveness or requiring Jones to take concrete
action in response. See Fair Employment Council, 28 F.3d at
1277 (noting that as case moved beyond pleading stage,
plaintiff, to show standing, needed to offer “support for [its]
claim that [defendant’s] alleged discrimination has ‘perceptibly
impaired’ [its] programs”); Spann, 899 F.2d at 30 (noting that as
case moved forward, plaintiffs would have to prove that
[defendant’s] violation caused them to expend resources or
suffer some other concrete injury”); Am. Legal Found. v. FCC,
808 F.2d 84, 92 (D.C. Cir. 1987) (dismissing petition to review
FCC order for lack of standing because court was “unable to
discern” how non-enforcement of FCC rule caused harm to “any

standing simply by asserting a role as public ombudsman”) (citing
Sierra Club v. Morton, 405 U.S. 727, 736-38 (1972)).
 12

discrete activities [petitioner] might undertake”). An affidavit
presented at this procedural stage would have to demonstrate
that KWMU’s alleged discrimination has such an impact. See
supra p. 6-7.
Alternatively, the Coalition points to our decision in Llerandi
v. FCC, 863 F.2d 79 (D.C. Cir. 1988), in which we upheld the
standing of the appellants, as “listeners,” to challenge the
assignment of two radio licenses on the ground that the
assignments violated the Commission’s then “duopoly” rule,
which prohibited common ownership of two AM stations with
overly overlapping signals. 863 F.2d at 85. As we explained in
Rainbow/PUSH Coalition, the Llerandi appellants had standing
because they were “seeking to take advantage of a prophylaxis
the Commission had designed to protect listeners from the
possibility that programming would be degraded by the creation
of a duopoly.” 330 F.3d at 545. The Coalition claims similar
standing because it is “seeking to take advantage of a
prophylaxis that the Commission had designed to protect
residents of the service area and listeners of the station from the
possibility that a licensee that practiced intentional racial
discrimination in its employment decisions, which calls into
question its character qualifications[,] would have its license
renewed.” Reply Br. 9. This argument overlooks a cardinal
distinction between the duopoly rule and the EEO rule. As the
court in Llerandi explained, the “ultimate point” of the duopoly
rule was “to assure (or at least enhance) diversification of
viewpoints within the broadcast industry.” Llerandi, 863 F.3d
at 85. Thus, this court had little difficulty finding that a listener,
who would be directly affected by the programming diversity
the rule was designed to promote, had standing to challenge the
Commission’s alleged violation of the rule. By contrast, the
violation alleged here involves a rule which was not designed to
affect a station’s programming. The Coalition apparently seeks
to revive its theory, which we rejected in Rainbow/PUSH
Coalition, that a listener has public interest standing to challenge
 13

the license of a broadcaster that breaks FCC rules–any FCC
rules regardless whether their violation affects the programming
that listeners hear. See Rainbow/PUSH Coalition, 333 F.3d at
544-45. As we responded then, while it may be desirable for the
Commission to vigorously enforce licensee compliance with its
rules, “it does not follow . . . that the audience is harmed
whenever the Commission punishes a particular [violation] with
less than the ultimate sanction.” 333 F.3d at 545; see also
KERM, Inc. v. FCC, 353 F.3d 57, 61 (D.C. Cir. 2004)
(complainant “cannot establish standing simply by asserting a
role as public ombudsman” but must assert “injury that is
sufficiently unique as to distinguish [complainant] from any
other public-minded potential litigant interested in ensuring the
faithful enforcement of the Act”) (citing Sierra Club v. Morton,
405 U.S. 727, 736-38 (1972); Steel Co. v. Citizens for Better
Env’t, 523 U.S. 83, 107 (1998)). Now, as then, the Coalition has
failed to “establish an ‘actual or imminent’ effect upon
programming” to support its claim of listener standing. Id.
(citing Sierra Club, 292 F.3d at 899).
Finally, the Coalition relies on our decision in Office of
Communication of United Church of Christ v. FCC, 359 F.2d
994 (D.C. Cir. 1966), to claim listener standing to challenge
discriminatory programming based on “the self evident impact
on program service stemming from intentional race
discrimination in employment.” Reply Br. 10; see also Jones
Aff. ¶ 9; (complaining of being deprived “of program service in
the public interest,” including “the multitude of viewpoints held
by people of color”). As we explained in Rainbow/PUSH
Coalition, however, such standing requires a showing that the
challenged FCC action “resulted in some actual effect upon the
programming” of the licensed station; otherwise “fears of
decreased diversity remain purely speculative.” 330 F.3d at 545.
In UCC the appellants made such a showing, proffering a
particularized complaint of the sparse and “disrespectful”
television exposure accorded blacks “ ‘accompanied by a
 14

detailed presentation of the results of Appellants’ monitoring of
a typical week's programming.’ ” 330 F.3d at 543 (quoting
UCC, 359 F.2d at 998 n.4). The Coalition has not made a
comparable showing here. This is not to say that discriminatory
employment practices cannot in some instances affect
programming content and thus cause injury to audience
members but to establish standing on this basis a complainant
must demonstrate both the existence of injury to the audience
and its causal link to the discrimination. The Coalition has not
done so.
Because the Coalition has failed to demonstrate actual and
redressable injury caused by the challenged license renewal so
as to establish Article III standing, we dismiss its appeals from
the Commission’s decisions.
So ordered.
 ROGERS, Circuit Judge, dissenting: In concluding that the
Rainbow/PUSH Coalition fails to demonstrate standing under
Article III of the U.S. Constitution, the court applies a
heightened evidentiary standard for causation and redressibility
that precedent does not require. According to the court, Rev.
Jones’s affidavit is insufficient to establish constitutional
standing because it fails to explain how the burden on his
resources is “directly attributable to the University’s alleged
discrimination” or how “an end to discrimination at this
particular ‘benchmark institution[]’ would perceptibly affect his
activities.” Op. at 9, 11. Under Supreme Court precedent and
our own case law, Rev. Jones’s affidavit alleges all of the facts
necessary to establish constitutional standing.

In Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982),
the Supreme Court held that an organizational plaintiff suffers
an injury caused by a defendant’s discriminatory practices when
it devotes counseling and referral resources to identifying and
counteracting such discrimination. Id. at 379. Such “concrete
and demonstrable injury to the organization’s activities — with
the consequent drain on the organization’s resources —
constitutes far more than simply a setback to the organization’s
abstract social interests.” Id. Relying on Havens, this court has
held that “an organization establishes Article III injury if it
alleges that purportedly illegal action increases the resources the
group must devote to programs independent of its suit
challenging the action.” Spann v. Colonial Village, Inc., 899
F.2d 24, 27 (D.C. Cir. 1990); see also Fair Employment
Council, Inc. v. BMC Marketing Corp., 28 F.3d 1268, 1276
(D.C. Cir. 1994). Under this precedent, Rev. Jones’s affidavit
sufficiently establishes that the burden on his resources is
traceable to the Commission’s unconditional renewal of the
University’s radio station license.
 2

The facts alleged in Rev. Jones’s affidavit must be “taken
to be true.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 561
(1992); see Sierra Club v. EPA, 292 F.3d 895, 899 (D.C. Cir.
2002). Rev. Jones describes the University’s radio station
KWMU-FM as “one of the benchmark institutions in the
community,” as it is “one of only two secular, noncommercial
full power radio stations in [the] community.” Jones Aff. ¶ 8.
He alleges that KWMU-FM discriminates against minority job
applicants in the St. Louis area, and that such discrimination is
“particularly egregious” because the University is a public
educational institution. Id. ¶ 4. He states that Rainbow/PUSH
“seeks to ensure that all Americans have equal opportunities to
work in industries, such as broadcasting, that are essential to
democracy,” and that “[t]oward this end, Rainbow/PUSH
counsels job applicants and employers on the subject of equal
employment opportunity, and . . . undertake[s] to place job
applicants . . . and guide their transition into the job market.” Id.
¶ 14.

More particularly, Rev. Jones explains that he personally
devotes significant resources to identifying employers that
discriminate against racial minorities so as to “avoid sending
young people off to search for employment at work sites where
they will either waste their timing filing applications doomed to
be discarded on the basis of race, or be hired and face the
frustration of a career where they can never fulfill their full
potential because of discrimination based on race.” Id. He also
states that he devotes significant resources to counteracting
employment discrimination in the St. Louis area by
“counsel[ing] young people on how to deal with discrimination
when they encounter it, how to avoid it, and how to fight it.” Id.
These burdens on Rainbow/PUSH’s and Rev. Jones’s resources
are traceable to the Commission’s unconditional renewal of the
University’s radio station license because, Rev. Jones explains,
“[b]y renewing the University’s license [for KWMU-FM] for
 3

another 8 years without so much as a hearing, the FCC extended,
rather than provided relief from, the station’s ability to continue
the alleged pattern of discriminatory employment practices.” Id.
¶ 5. Such discrimination may, as this court explained in Fair
Employment Council, “increase the number of people in need of
counseling” or “reduce[] the effectiveness of any given level of
outreach efforts.” 28 F.3d at 1276. Rev. Jones concludes that
“[i]f major institutions . . . that provide leadership roles in
society as a whole like public radio stations” would stop
discriminating, the burden on his counseling and referral
resources “would be lifted from [his] shoulders.” Jones Aff. ¶
14 (emphasis added).

Counsel for the Commission observed at oral argument that
Rev. Jones’s affidavit would have been “stronger” if it had
identified a specific instance in which KWMU-FM had denied
employment to an applicant whom Rev. Jones had referred or
counseled. But counsel did not argue, and indeed could not
argue, that the failure to do so rendered Rev. Jones’s affidavit
insufficient as a matter of law. Neither Supreme Court nor our
precedent requires the organization to identify a specific
instance in which the defendant discriminated against an
individual whom the organization referred or counseled; an
allegation that the organization expended resources to combat
such discrimination is sufficient. See Havens, 455 U.S. at 379;
Fair Employment Council, 28 F.3d at 1276; Spann, 899 F.2d at
27-28. Although in Havens and Fair Employment Council there
was evidence that the defendant had discriminated against the
organization’s testers, such evidence was unnecessary to
establish standing because the resources devoted to testing did
not form the basis of the organization’s injury. See Havens, 455
U.S. at 379; Fair Employment Council, 28 F.3d at 1276-77.
Indeed, in Spann, this court found standing without evidence of
the defendant’s discrimination against the organization’s testers,
relying instead on the organization’s allegation that the
 4

“defendants’ preferential advertising tended to steer black home
buyers and renters away from the advertised complexes and thus
impelled the organizations to devote resources to checking or
neutralizing the ads’ adverse impact.” 899 F.2d at 27.

To the extent that precedent can be read to require the
organization to identify the particular burden that the
defendant’s discrimination, as opposed to general societal
discrimination, places on the organization’s resources, see
Havens, 455 U.S. at 379; Fair Employment Council, 28 F.3d at
1276; Spann, 899 F.2d at 27-28, Rev. Jones’s affidavit is
sufficient when read in the light most favorable to him and
particularly when read in conjunction with the other affidavits
proffered by Rainbow/PUSH alleging employment
discrimination by KWMU-FM. Cf. Sierra Club, 292 F.3d at
899; Tao v. Freeh, 27 F.3d 635, 638 (D.C. Cir. 1994) (citing
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 255 (1986)).
Rev. Jones identifies KWMU-FM as “one of the benchmark
institutions in the community” and emphasizes that “[i]t is
important for the Court to appreciate the vital and unique
importance of radio station KWMU-FM in our community.”
Jones Aff. ¶ 8. He explains that the station has a “unique role to
play in fostering racial dialogue in St. Louis” because the
University is a public educational institution, id., which makes
the station’s employment discrimination “particularly
egregious,” id. ¶ 4. He specifies that he seeks to place minority
job applicants in the broadcasting industry, and that if “major
institutions” with “leadership roles in society as a whole like
public radio stations” would stop discriminating, a significant
burden on his counseling and referral resources would be
alleviated. Id. ¶ 14 (emphasis added). While other “major
institutions” that engage in employment discrimination may also
burden his resources, Rev. Jones’s affidavit sufficiently
identifies KWMU-FM as one of those “major institutions”
whose discriminatory employment practices burden his
 5

resources. Such practices are documented by the specific facts
alleged in the several affidavits of minority job applicants and
employees that describe the station’s discrimination against
them. Cf. Rainbow/PUSH Coalition v. FCC, 330 F.3d 539, 544
(D.C. Cir. 2003).

According to the court, Op. at 9, Rev. Jones’s affidavit is
insufficient because it fails to mention KWMU-FM by name in
paragraph 14 when referring to discrimination by “major
institutions . . . that provide leadership roles in society as a
whole like public radio stations,” even though the entire
affidavit refers to KWMU-FM, and paragraphs 4 and 8
specifically describe KWMU-FM as one of the only two secular
public radio stations in the St. Louis community and as a
benchmark institution that engages in “particularly egregious”
employment discrimination. Jones Aff. ¶¶ 4, 8. Nothing in our
precedent requires the affidavit to state “magic words” in the
way that the court requires today. Rather than confront the
content of Rev. Jones’s affidavit and accord him all reasonable
inferences, the court simply asserts that he fails to explain how
KWMU-FM’s alleged discriminatory employment practices
burden his counseling and referral resources. Op. at 11. Taken
together with the affidavits submitted by Rainbow/PUSH and
read as a whole in the light most favorable to Rainbow/PUSH,
Rev. Jones’s affidavit sufficiently connects, for the purpose of
demonstrating constitutional standing, KWMU-FM’s
discriminatory employment practices to the burden on his
counseling and referral resources.

Rev. Jones’s affidavit also adequately demonstrates that his
injury is redressible. A “violation of the procedural
requirements of a statute,” such as the Commission’s failure to
conduct a hearing pursuant to 47 U.S.C. § 309(e), “is sufficient
to grant a plaintiff standing to sue, so long as the procedural
requirement was ‘designed to protect some threatened concrete
 6

interest’ of the plaintiff.” City of Waukesha v. EPA, 320 F.3d
228, 234 (D.C. Cir. 2003) (quoting Defenders of Wildlife, 504
U.S. at 573 n.8). This requirement “is not very stringent” and
requires only “some sort of connection between the procedural
requirement at issue and the substantive action of the agency.”
Id. at 234-35. Here, the statute itself establishes the connection
between the procedural requirement of an evidentiary hearing
and the substantive action of conditioning or denying the license
renewal. See 47 U.S.C. § 309 (2000). Thus, for the purpose of
evaluating redressibility, the court must assume that
Rainbow/PUSH will succeed on the merits and obtain the
remedies it seeks, see City of Waukesha, 320 F.3d at 235, such
as a denial of the license renewal or a renewal conditioned on
nondiscriminatory employment practices.

By applying a heightened evidentiary standard for causation
and redressibility, the court betrays a fundamental
misconception about the purpose of the standing requirement.
At this stage of the proceeding, the issue is not likelihood of
success on the merits. Rather, the standing requirement simply
ensures that the petitioner has a “defined and personal stake in
the outcome of the litigation” and that the court does not render
an advisory opinion. Florida Audubon Soc’y v. Bentsen, 94 F.3d
658, 663 (D.C. Cir. 1996) (en banc). For example, in Havens,
the Supreme Court accepted for the purpose of establishing
standing the organization’s allegation that it had expended
resources to combat the defendant’s discrimination, while noting
that the organization would “have to demonstrate at trial that it
has indeed suffered impairment in its role of facilitating open
housing before it will be entitled to judicial relief.” 455 U.S. at
379 & n.21; see also Fair Employment Council, 28 F.3d at 1277.
Indeed, to require evidence beyond the specific facts alleged in
Rev. Jones’s affidavit “is to raise the standing hurdle higher than
the necessary showing for success on the merits” in a petition
seeking an evidentiary hearing on KWMU-FM’s alleged
 7

employment discrimination. Friends of the Earth, Inc. v.
Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 181 (2000).

The Supreme Court has observed that “in many cases the
standing question can be answered chiefly by comparing the
allegations of the particular complaint to those made in prior
standing cases.” Spann, 899 F.2d at 29 (quoting Allen v. Wright,
468 U.S. 737, 751-52 (1984)) (internal quotation marks
omitted). To the extent that this court requires a heightened
evidentiary showing to establish standing, it departs from the
Supreme Court’s approach. For example, in Friends of the
Earth, the Supreme Court held that a plaintiff’s affidavit
alleging that he intended to fish in a river allegedly polluted by
the defendant was sufficient to establish standing, even though
the plaintiff did not provide evidence showing that the specific
site where he intended to fish was polluted by specific toxins
discharged by the defendant. 528 U.S. at 181-82. It was
sufficient that the plaintiff identified the river, stated that he
wanted to fish in the river but was deterred by pollution there,
and alleged that the defendant polluted the river. Similarly, it is
sufficient that Rev. Jones identified the St. Louis broadcasting
job market, stated that he wanted to counsel and place minority
job applicants in that market but was burdened by the
“pollution” of discrimination by major institutions, and alleged
that KWMU-FM was a major “polluter.”

Accordingly, I would hold that Rainbow/PUSH has
demonstrated its Article III standing to challenge the
Commission’s denial of its request for a hearing on the
University’s application for renewal of KWMU-FM’s license.

Upon reaching the merits, I would deny the petition. First,
the Commission has “broad discretion in determining whether
to hold a hearing in conjunction with a license renewal,” and this
court defers to the Commission’s decision not to hold a hearing
 8

if it is “reasonable and supported by the evidence before it.”
Beaumont Branch of the NAACP v. FCC, 854 F.2d 501, 507
(D.C. Cir. 1977). For the reasons stated by the Commission, see
Curators of the Univ. of Missouri, 16 F.C.C.R. 1174, 1176-78
(2001), it could reasonably conclude that the affidavits
submitted by Rainbow/PUSH did not constitute strong enough
evidence to justify departure from the Commission’s
“longstanding general policy” of referring such allegations of
employment discrimination to the Equal Employment
Opportunity Commission. Id. at 1178; see Tallahassee Branch
of the NAACP v. FCC, 870 F.2d 704, 710 (D.C. Cir. 1989).
Second, it was reasonable for the Commission to conclude that
it was unnecessary to conduct a hearing on the University’s
failure to include in its license renewal application all
employment discrimination complaints filed against it.
Rainbow/PUSH’s allegations are not necessarily inconsistent
with the Commission’s finding that the University did not intend
to deceive the Commission. See Citizens for Jazz on WRVR,
Inc. v. FCC, 775 F.2d 392, 396 (D.C. Cir. 1985); Fox Television
Stations, Inc., 10 F.C.C.R. 8452, 8487 (1995). This finding is
supported by both the University’s statement that the omissions
were inadvertent, which the Commission was entitled to credit,
and the fact that the omitted complaints were resolved in the
University’s favor. See Curators, 16 F.C.C.R. at 1179-81.