Proposed change in the form would allow individuals to identify themselves as members of as many as five separate racial categories, simultaneously. But the results may not help the Commission get to where it seems to want to go.

The Federal Register on March 1 has informed us that the FCC’s Broadcast Ownership Report (FCC Form 323) is back at the Office of Management and Budget (OMB) for review. According to the notice, the Commission is proposing a change in the question seeking the racial identification of attributable interest holders. You can get to the OMB’s files on the matter at this link.

The form currently in effect lists five racial categories and then a catch-all “Two or more races”; respondents are required to select only one of those six options. Apparently, though, OMB changed its policies governing collection of data relative to race and ethnicity last September. (According to the FCC, that change is reflected in an OMB action dated September 13, 2012, cited by the FCC as “Notice of Office of Management and Budget Action (NOA), dated 09/13/2012”. We were unable to track down a copy of that action, but we’re willing to take the Commission’s word that it exists somewhere. If any reader can point us to a site where we might find the OMB action in question, we’d be much obliged.) As a result, the Commission is proposing to eliminate the “Two or more races” option and to allow respondents to select as many of the other racial options as may apply to the individual who is the subject of the response.

While the elimination of the generally uninformative “Two or more races” might be thought to provide a greater degree of useful data concerning the racial composition of commercial broadcast ownership, we’re not confident of that.

After all, the draft revision of Form 323 doesn’t provide any guidance for determining precisely when an individual may properly deem him/herself to be qualified to check any particular racial category.  Presumably having a parent belonging to one category or another will clearly suffice. But what about more distant levels of racial ancestry? 

The proposed version of the form would allow an individual to identify him/herself as belonging to as many as five different racial groups, simultaneously. (The proposed form provides five separate racial categories, and instructs the respondent to “[c]heck all racial categories that apply.” Note that the form also asks for ethnicity information separate and apart from racial information, injecting a further element of heredity into the mix.) That clearly indicates that the Commission contemplates that claims of racial affiliation can be based on genetic contributions dating back at least three generations (i.e., to the great-grandparent level), which suggests that as little as 1/8 — and maybe less — of one’s genetic inheritance may affect one’s response.

The draft version of the Ownership Report submitted to OMB is silent on just how far down the family tree one may permissibly – or is required to – climb in order to determine the correct answer. The form seems to leave it up to the respondent to make the call. But if that’s the case, how reliable will the resulting statistics be? The flap in the Massachusetts senatorial election last fall relative to then-candidate-now-Senator Elizabeth Warren’s ancestry illustrates some of the difficulties attendant to self-identification of racial heritage.

As long as the Commission is trying to clean up its form in the hope of producing useful statistics relative to the racial composition of broadcast ownership, it might want to take this opportunity to do just that. Greater specificity in the instructions to Form 323 would be a start.

Of course, even if the Commission were to refine its form to clearly specify the necessary quantum or degree of racial identity, it would face the problem of verifying the responses. Would it undertake spot checks? Would it investigate allegations of racial misidentification? What type of proof would be necessary, or sufficient, to satisfy the Commission?  If no verification processes are contemplated, then how can the Commission be confident of the accuracy of the data it’s proposing to amass? That’s especially true in view of the seemingly infinite latitude which the revised Form 323 currently accords to respondents relative to racial/ethnic identification claims.

Some – including this blogger in particular – have taken the position that the race and ethnicity of broadcast owners are (in the words of the brief for Brown in Brown v. Board of Education) a constitutional irrelevance. More than 20 years ago, while working for another law firm, I argued to the Supreme Court that the FCC could not constitutionally discriminate in its broadcast licensing policies based on race or ethnicity.   The Court ruled the other way in that particular case (Metro Broadcasting, Inc. v. FCC), but within five years the Court had overruled Metro in a case called Adarand Constructors v. Pena. As a result, the Commission was left constitutionally unable to engage in race- or ethnicity-based decisionmaking unless it could satisfy the “strict scrutiny” standard of review. That standard of review is particularly demanding and ordinarily requires a conclusive demonstration of past discrimination which the challenged race-based scheme would be intended to correct.

In the nearly two decades since Metro was overruled, the FCC has not compiled such a conclusive demonstration. A number of observers suspect that the Commission’s push in recent years to amass (through its revised ownership reporting requirements) extensive information about the racial/ethnic/gender composition of the broadcast industry is an effort to generate data that might support such a so-called “Adarand showing”. If that’s the case, then it would appear even more important for the Commission to take careful steps to assure that any data that it seeks to compile are maximally accurate and reliable. The constitution disfavors race- and ethnicity-based governmental decisionmaking, which explains the high hurdles the Supreme Court has imposed on that practice. If the Commission is planning to try to cross that constitutional minefield, it will have to be prepared to make an overwhelmingly persuasive case.

In its proposed form, it’s far from clear that the revised Ownership Report form currently awaiting OMB review will do the trick.

In any event, anyone interested in sharing their thoughts about the revised Form 323 may submit comments to OMB by April 1, 2013.

(For those readers interested in the fate of the Special Use FRN (SUFRN), the proposed form sitting over at OMB just now does not appear to alter the availability of the SUFRN. The FCC’s Supporting Statement makes no reference to any change in that regard, and the sample form also is silent on the question. Note, however, that the Commission has submitted only a Word version of the form to OMB. Astute readers will recognize that the SUFRN option shows up as a drop-down option relatively deep in the inner recesses of the online version of Form 323. The SUFRN option does not appear in the Word version. Indeed, the last time the Commission revised the SUFRN option, it had to write the changes into the form by hand, as demonstrated in our post at the time.)