# Shurberg Broadcasting of Hartford, Inc. v. Federal Communications Commission, Astroline Communications Co., Intervenor

> Court of Appeals for the D.C. Circuit · June 16, 1989 · 876 F.2d 902

URL: https://www.frixlaw.com/law-library/cases/9479108

## Case

- **Full name:** SHURBERG BROADCASTING OF HARTFORD, INC., Appellant, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee, Astroline Communications Co., Intervenor
- **Court:** Court of Appeals for the D.C. Circuit
- **Decided:** June 16, 1989
- **Citations:** 876 F.2d 902; 278 U.S. App. D.C. 24; 1989 U.S. App. LEXIS 8928
- **Precedential status:** Published
- **Opinion:** On rehearing
- **Judges:** Wald, Sil-Berman, Mac-Kinnon, Silber-Man, MacKinnon, Robinson, Mikva, Edwards, Ginsburg, Silberman, Buckley, Williams, Sentelle
- **Cited by:** 25 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Reversed by Metro Broadcasting, Inc. v. Federal Communications Commission, 497 U.S. 547 (1990).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9479108

## How later opinions describe it (automated extraction)

- noting the difficulty of extracting general principles from the Court's fractured opinions

## Opinion text

ON PETITIONS FOR REHEARING
Before: WALD, Chief Judge, SILBER-MAN, Circuit Judge, MacKINNON, Senior Circuit Judge.
ORDER
PER CURIAM.
Upon consideration of the petitions for rehearing of appellee and intervenor it is ORDERED, by the Court, that the petitions are denied.
Chief Judge WALD would grant the petitions for rehearing.
A statement of Senior Circuit Judge Mac-KINNON is attached.
*954 MacKINNON, Senior Circuit Judge:
I vote to deny rehearing by the panel and the suggestion for rehearing en banc for the reasons set forth below.
From existing decisional law it must be concluded that any racial or group preference is inherently suspect, must be subject to close and careful scrutiny and can only be upheld to justify an award to promote programming diversity if it is one of several factors that entered into the decision. J.A. Croson Co. v. City of Richmond, — U.S. -, 109 S.Ct. 706, 721 , 102 L.Ed.2d 854 (O’Connor, J.), 109 S.Ct. at 735 (Scalia, J.) (1989) (citations to the slip opinion). In other words, racial or group preference violates equal protection if, as here, it is the only basis for a federal agency preferring one applicant over another. As Justice Powell stated in his opinion, University of California Regents v. Bakke, 438 U.S. 265 , 98 S.Ct. 2733 , 57 L.Ed.2d 750 (1978):
“[Pjreferring members of any one group for no reason other than race or ethnic origin is discrimination for its own sake. This the constitution forbids.”
Bakke at 307 , 98 S.Ct. at 2757 (Powell, J.). Cf. Johnson v. Transportation Agency, 480 U.S. 616, 638 , 107 S.Ct. 1442, 1455 , 94 L.Ed.2d 615 (1987) (Title VII analysis).
The standards of the Federal Communications Commission’s distress sale policy here in question provide that certain minority groups shall have an absolute preference over all other citizens in qualifying for a broadcast license that is designated for hearing. The preferred minority groups are defined and restricted to those who are:
“black, Hispanic surnamed, American Eskimo, Aleut, American Indian and Asiatic American extraction,” 68 FCC2d at 781 n. 8 (1978).
Even all non-minority women are excluded. The preferred group in this case is: “Hispanic surnamed.” With all the intermarriages, having a Hispanic surname is no guarantee that a person is “Hispanic” or a minority to any substantial degree — though this opinion makes nothing of this point. In my opinion there is no possibility that an absolute group preference can be held to be constitutional under the equal protection standard implicit in the 5th Amendment. 1 *955 Bolling v. Sharpe, 347 U.S. 497 , 74 S.Ct. 693 , 98 L.Ed. 884 (1954).
With the case in its present posture nothing would be gained by rehearing. The Commission has been absolutely prohibited by Congress from making any change or even determining the facts to justify the validity of the program. In addition, the Commission has vacillated from one position to another like a teeter-totter and when it filed its opinion in this case was in one of its 2 to 1 reversal moods due to two unfilled Commission vacancies. These two Commissioners stated that the program is constitutional. However, the Commission’s earlier brief to the en banc court in Steele v. FCC, 770 F.2d 1192 (D.C.Cir.1985), vacated and rehearing en banc granted, Order of Oct. 31, 1985, remanded, Order of October 9, 1986 (FCC Brief at 15), stated that the Commission’s racial and gender preference policies, which would include the distress sale program, were unconstitutional. The Commission’s Steele Brief on Rehearing En Banc stated:
I. THE FCC’S CURRENT POLICY OF GRANTING RACE AND GENDER PREFERENCES CONFLICTS WITH CONSTITUTIONAL STANDARDS.
The racial and gender preference policies employed by the FCC in comparative licensing proceedings since 1978 are discriminatory classifications by government that are inherently suspect, presumptively invalid and subject to stringent scrutiny under the equal protection guarantee implicit in the due process clause of the Fifth Amendment. See Wygant v. Jackson Bd. of Educ. [ 476 U.S. 267, 273 , 106 S.Ct. 1842, 1846 ], 90 L.Ed.2d 260, 268 (1986); Lehr v. Robertson, 463 U.S. 248, 265-66 [ 103 S.Ct. 2985, 2995-96 , 77 L.Ed.2d 614 ] (1983).
Properly balanced programming diversity of viewpoint in mass media is an acceptable goal, but the Commission in its long history of awarding broadcast licenses has never thwarted that objective by uneonstitutionally discriminating against minorities. The objective of programming diversity whether considered as satisfying the 5th Amendment, or as authorized by the 14th Amendment, must meet some modicum of equal protection.
The dissent states at n. 3 that if this case was reheard "on the merits” by the court en banc and the court was equally divided the FCC’s decision would be upheld. I fail to understand the significance of this speculation. As the court is presently constituted, en banc consideration of this case would not ordinarily result in an equally divided court. The en banc court would include the senior circuit judge who participated in the original panel, which, based on positions presently expressed, would result in a 6-5 vote affirming the reasoning of the majority decision of the panel. See Boeing Company v. Shipman, 411 F.2d 365, 367 (5th Cir.1969); Luna v. Beto, 395 F.2d 35, 37 (5th Cir.1968); Allen v. Johnson, 391 F.2d 527 (5th Cir.1968); cf. Tavoulareas v. Piro, 817 F.2d 762 (D.C.Cir.1987) (En Banc) (two Senior Circuit Judges participating in rehearing en banc due to their participation in the original three judge panel.). Thus, only delay would be the most likely result from granting rehearing en banc.
Dennis R. Patrick, as Chairman of the Federal Communications Commission, in his dissenting opinion, has set forth the material facts and the law in an admirable opinion. The dissent would denigrate the soundness of the Chairman’s opinion because he has subsequently resigned. The soundness of a legal decision is not diminished by the resignation or death of an official. Chief Justice Marshall’s opinions and those of all prior judges still survive as precedents. The evaluation of the legal reasoning in Chairman Patrick’s dissent is entitled to be evaluated on the basis of its legal merits to the same extent as the dissent in this case. Because Chairman Patrick’s excellent opinion succinctly covers the entire background and the law applicable to each phase of this case, it de *956 serves more recognition than it has received, and, so far as relevant, is set forth in the following Appendix. 2
APPENDIX
DISSENTING OPINION OF CHAIRMAN PATRICK OF THE FEDERAL COMMUNICATIONS COMMISSION IN SHURBERG.
“The Commission’s minority preference policies have a tortured past. The Commission initially took the position that minority preferences should be granted only after the minority applicant clearly demonstrated that program and viewpoint diversity would be fostered through minority ownership. After being directed by the D.C. Circuit to presume a nexus between minority ownership and program diversity, 1 the Commission developed various preferences designed to promote minority ownership, including the distress sale policy at issue in Shurberg, the comparative preference policy and the tax certificate policy. See Policy Statement on minority Ownership of Broadcast Facilities, 68 F.C.C.2d 979 (1978). The Commission later extended the comparative preference policy to females. See Mid-Florida Television Corp., 69 F.C.C.2d 607 , 652 (1978). The constitutionality of that policy was challenged in Steel v. FCC, 770 F.2d 1192 (D.C.Cir.1985), vacated and rehearing en banc granted, Order of Oct. 31, 1985, remanded Order of Oct. 9, 1986. At that point, the Commission believed that “both the gender and racial preference schemes conflict with equal protection standards under the Constitution.” Supplemental Brief for the Federal Communications Commission at 13, Steele v. FCC, No. 84-1176 (D.C.Cir.). The Commission unanimously concluded, based on recent Supreme Court decisions applying equal protection analysis, that racial classifications may not be based on the assumption alone, without a factual predicate, that integrated minority owners will result in increased programming and viewpoint diversity. Id. As a result the Commission urged the court to permit us to undertake a comprehensive inquiry into the legal and factual predicate of our preference policies to determine whether a nexus truly does exist between minority ownership and program diversity. The Commission thereafter undertook such a study designed to provide a fuller record and to gather the empirical data necessary to support retention of our preference scheme. Notice of Inquiry in MM Docket No. 86-784, FCC 86-549 , 1 FCC Red. 1315 (1986). Prior to the completion of this study, however, Congress decreed that the FCC expend no funds in fiscal year 1988 to complete its research or to change its preference policies. 2 In compliance with this congressional mandate, the Commission closed its rule-making, without issuing any findings or conclusions, and reestablished all preference policies.
In Shurberg, each of the three separate opinions treats West Michigan differently. Judge Silberman questions West Michigan ’s initial conclusion that there is a compelling government interest in increasing diversity of programming and goes on to conclude that it may, in any event, be undermined by the Supreme Court’s recent *957 decision in Croson. Judge MacKinnon’s opinion does not address West Michigan per se but insists that preference policies must be narrowly tailored, while Judge Wald concludes that at least some of the conclusions in West Michigan have not been undermined by subsequent Supreme Court decisions.
Recent Supreme Court precedents collectively make clear that racial and gender classifications are inherently suspect and will be subject to close and careful scrutiny. 3 Most significantly, after Croson, the standard of review required for any governmental classification based on race is strict scrutiny. City of Richmond v. J.A. Croson Co., 57 U.S.L.W. 4132, 4139 [— U.S. -, -, 109 S.Ct. 706, 720 , 102 L.Ed.2d 854 ] (Part III-A) and 4146 [-, 109 S.Ct. at 735 ] (Scalia, J. concurring).
The first stage of equal protection analysis under strict scrutiny requires a determination as to whether there is a compelling government objective. The Supreme Court has only identified two compelling interests for race-based policies. First, such minority preference policies may be implemented to remedy past discrimination. Fullilove, 448 U.S. at 475 [100 S.Ct. at 2773]. 4 Second, at least Justice Powell in Bakke believed that, for educational institutions, academic diversity is a compelling government interest. 5 Bakke, 438 U.S. at 311-15 [ 98 S.Ct. at 2759-61 ] (opinion of Powell, J.).
From this second justification, the D.C. Circuit in West Michigan extrapolated to find “program diversity” in broadcasting a compelling interest. This premise, set out in West Michigan, relies on Justice Powell’s opinion in Bakke that a diverse educational environment is a compelling goal that may be constitutionally promoted by certain admissions policies which recognize race as one of several factors. As racial diversity is only one aspect of a truly diverse student body, Justice Powell believed that a university could use race as one factor in a multi-factor admissions decision. 6
Similarly, if one assume program diversity to be a compelling goal, race is but one factor which may bear on diversity of view *958 point. 7 Because minority status is the exclusive criterion for use of the distress sale policy, I fail to see why that policy passes even Justice Powell’s test. Outside the remedial context, the Supreme Court has never upheld a preference policy based solely on race, and has specifically rejected the use of minority set-asides as a means of promoting diversity. Bakke, 438 U.S. at 314-18 [ 98 S.Ct. at 2760-63 ].
Citing Fullilove, my fellow Commissioners see no reason why the court should not extend its findings in the remedial context to the diversity arena. I submit that one does not necessarily lead to the other. It is clear after the Supreme Court’s decision in Croson that race-based measures are subject to the highest degree of scrutiny. Where evidence of past discrimination exists, the Court may well tolerate race-based remedial measures. But where the most nebulous goal of diversity is at issue, the most that even Justice Powell would permit is the consideration of race as one of several factors. There is no basis to think the Court would allow more.
Ensuring that minority perspectives can be aired in a diverse broadcast marketplace is an important policy goal which I support. But our station licensing and transfer policies must, above all else, guarantee equal protection of the laws to all Americans. As such, our race-conscious policies must be subjected to the most rigorous review to insure fidelity to this principle.
Before WALD, Chief Judge, ROBINSON, MIKVA, EDWARDS, RUTH B. GINSBURG, SILBERMAN, BUCKLEY, WILLIAMS, D.H. GINSBURG and SENTELLE, Circuit Judges.
. The dissent cites Justice Scalia’s statement in his concurring opinion in City of Richmond v. J.A. Croson Co., — U.S. -, 109 S.Ct. 706 , 102 L.Ed.2d 854 (1989) which notes that Congress, pursuant to Section 5 of the 14th Amendment, possess augmented legislative powers “concerning matters of race.” Statement of dissent denying rehearing en banc at 958-959 Shurberg Broadcasting of Hartford, Inc. v. Federal Communications Commission, No. 84-1600 (quoting City of Richmond v. J.A. Croson Co., supra, Scalia, J., 109 S.Ct. at 736 ). This citation implies that Congress’ by virtue of Section 5 of the 14th Amendment has augmented legislative powers which extend beyond the power to enact race conscious legislation to remedy prior group discrimination, and extends to authorize legislation designed to promote diversity. In this respect the dissent is troubling for the far reaching consequences it may sow. Clearly, the Croson decision does not warrant such an assumption. In Croson, the Court considered Richmond’s affirmative action program which was designed to remedy prior racial discrimination in the city. Croson 109 S.Ct. at 713 ; 109 S.Ct. at 735 (Scalia, J.). Justice Scalia’s reference to the Congress’ “enhanced powers" under Section 5 of the 14th Amendment must be interpreted as addressing legislation designed to remedy prior discrimination. Similarly, Chief Justice Burger's opinion in Fullilove v. Klutznick, 448 U.S. 448 , 100 S.Ct. 2758 , 65 L.Ed.2d 902 (1980), outlined Congress’ powers under the 14th Amendment in the context of legislation designed to remedy prior racial discrimination:
Here we deal, as we noted earlier, not with the limited remedial powers of a federal court, for example, but with the broad remedial powers of Congress. It is fundamental that in no organ of government, state or federal, does there repose a more comprehensive remedial power than in Congress, expressly charged by the Constitution with the competence and authority to enforce equal protection guarantees.
Fullilove at 483 , 100 S.Ct. at 2777 (Burger, C.J.) (emphasis added). The dissent seeks, without discussion or citations to authority, to rely on Section 5 of the 14th Amendment as a positive grant of legislative power to Congress to enact race conscious programs designed to promote diversity absent any evidence of prior racial discrimination.
The implied assertion of the dissent that a legislative objective other than the remedying of past discrimination is entitled to heightened deference pursuant to Section 5 of the 14th Amendment is alarming because it has no logical stopping point. Judge Silberman has also expressed doubts as to whether Congress is entitled to enhanced deference under the 14th Amendment outside the remedial context. Sil-berman at 923. Moreover, a plurality of the Supreme Court stated that race conscious programs should be "strictly reserved for remedial settings.” Croson 109 S.Ct. at 721 (O’Connor, J.); at 736 (Scalia, J.); See Silberman at 920. To accord Congress heightened deference under the 14th Amendment outside remedial settings would grant the Legislative Branch a broad li *955 cense to classify citizens on the basis of race pursuant to the Amendment designed to do away with such racial classification. Of course, this case is limited by the 5th Amendment, but some degree of “equal protection" must still be satisfied. I fail to see that an absolute preference can be upheld under the equal protection implications of the 5th Amendment.
. The fact that Chairman Patrick favored rehearing en banc in this case and Winter Park was not stated because it is not relevant here. He supported rehearing en banc for Shurberg only if Winter Park was included. However, Winter Park is distinguishable on two material grounds. It involved (1) a comparative hearing and (2) the minority preference was only a plus factor. In Shurberg minority preference is an absolute preference. This case is not to be contrasted with a case which involved race as only one factor in a comparative licensing procedure.
. TV 9, Inc. v. FCC, 495 F.2d 939 [929], (D.C.Cir.1973), ce rt. denied, 419 U.S. 986 [ 95 S.Ct. 245 , 42 L.Ed.2d 194 ] (1974).
. See Making Further Continuing Appropriations for Fiscal Year 1988 and for Other Purposes, Pub.L. No. 100-202 (signed Dec. 22, 1987). The appropriations legislation prohibits the Commission from using funds "to repeal, to retroactively apply changes in, or to continue a reexamination of’ the Commission’s policies premised on racial, ethnic or gender classification, except to: (1) close its proceeding investigating the preference policies; (2) reinstate prior policy; and (3) lift any suspension imposed on implementing the policies pending its investigation.
. See e.g., City of Richmond v. J.A. Croson Co., 57 U.S.L.W. 4132 [— U.S. -, 109 S.Ct. 706 , 102 L.Ed.2d 854 ] (U.S. Jan. 23, 1989); Wygant v. Jackson Board of Education, [ 476 U.S. 267 , 106 S.Ct. 1842 ] 90 L.Ed.2d 260 (1986); Fullilove v. Klutznik, 448 U.S. 448 [ 100 S.Ct. 2758 , 65 L.Ed.2d 902 ] (1980); Regents of the University of California v. Bakke, 438 U.S. 265 [ 98 S.Ct. 2733 , 57 L.Ed.2d 750 ] (1978). See also Mississippi University for Women v. Hogan, 458 U.S. 718 [ 102 S.Ct. 3331 , 73 L.Ed.2d 1090 ] (1982).
. The Commission has never claimed that its preference policies are intended to remedy prior discrimination against minorities or to provide remedial benefits. It could be argued that Congress has separately adopted our policies as its own, with the justification that its policies are remedial. But Congress did not justify its funding decisions remedial. As my fellow Commissioners agree, Congress relied solely on a diversity rationale. FCC Petition or Rehearing at n. 1.
. It is unclear after Croson whether Justice Powell’s diversity rationale would be endorsed by the present Court. A plurality of the Court in that case quite clearly stated that classifications based on race should be "strictly reserved for remedial settings.” Croson, 57 U.S.L.W. at 4139 [— U.S. at -, 109 S.Ct. at 721 ], see also id. at 4145 [-, 109 S.Ct. at 735 ] (Scalia, J., concurring). And Justice O’Connor, who had indicated some sympathy for Justice Powell’s diversity rationale, Wygant, 476 U.S. at 286 [ 106 S.Ct. at 1852 ] (O’Connor, J., concurring), appears to have rejected that rationale in Croson. Justice Stevens interpreted Justice O’Connor's opinion as such a rejection, Croson, 57 U.S.L.W. at 4144 n. 1 [— U.S. at - n. 1, 109 S.Ct. at 730 n. 1] (Stevens, J., concurring in part), as has Judge Silberman, Shurberg, Silberman opin. at 919-921. While Judge Wald agrees as to the substance of Justice Stevens’ interpretation of the O’Connor opinion, Shurberg, Wald opin. at 942 n. 20 (dissenting), she herself would read that same opinion differently. With all due respect to Judge Wald, I must defer to the interpretation of Croson rendered by a member of the Supreme Court. Thus, in light of the Court’s decision in Croson, whether the academic diversity rationale remains as a compelling government interest for race-based policies is an open question. Certainly then, extensions of that rationale cannot be supported.
.The plan before the Bakke court, however, employed a racial set-aside, which did not account for other diversity factors. As Justice Powell wrote in Bakke , “preferring members of any one group for no reason other than race or ethic origin is discrimination for its own sake. This the Constitution forbids.” Bakke, 438 U.S. at 307 [ 98 S.Ct. at 2757 ]. The Court thus struck that plan down as unconstitutional.
. As I have previously noted, however, the Commission has been prohibited from determining whether race is a factor in viewpoint diversity, that is, whether there is a nexus between minority ownership and programming.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9479108. Public record. Not legal advice.