Unpublished Disposition, 905 F.2d 1540 (9th Cir. 1987)

MEMORANDUM^* 

California Association of the Physically Handicapped (CAPH) petitions for review of a Federal Communications Commission (FCC) Final Report and Order issued April 15, 1987, adopting rules to implement a 1978 amendment to section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, which prohibits discrimination on the basis of handicap under any program or activity conducted by any Executive agency. CAPH claims that the FCC rule violates the Communications and Rehabilitation Acts by failing to require all licensees to close caption prime time programs. CAPH also claims that the FCC rule violates the Rehabilitation Act, the Communications Act, and the equal protection clause of the fifth amendment by not implementing an equal employment opportunity program for the handicapped.

CAPH first alleges that the Rehabilitation Act, 29 U.S.C. § 794, and the Communications Act, 47 U.S.C. § 309(a) compel the FCC to require licensees to close caption all prime-time programming. The Court of Appeals for the District of Columbia's recent opinion, California Ass'n of the Physically Handicapped, Inc. v. Federal Communications Comm'n, 840 F.2d 88, 91-95 (D.C. Cir. 1988) (CAPH IV), is res judicata as to this issue. See Community Television v. Gottfried, 459 U.S. 498, 508-12 (1983). See also, California Ass'n of the Physically Handicapped, Inc. v. Federal Communications Comm'n, 721 F.2d 667, 669-70 (9th Cir. 1983), cert. denied, 469 U.S. 832 (1984) (CAPH I) .

II. Equal Employment Opportunity Programs for the Handicapped

CAPH next alleges that the Rehabilitation Act, the Communications Act, and the equal protection clause of the fifth amendment compel the FCC to require licensees to implement equal employment opportunity programs for the handicapped. The district of Columbia's opinion noted above is res judicata as to this issue as well. CAPH IV, 840 F.2d at 95-96. See also CAPH I, 721 F.2d at 669-70.

Petitioner's Petition for Review is hereby DENIED.