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

WALD, Chief Judge,

joined by ROBINSON, MIKVA, EDWARDS and RUTH B. GINSBURG, Circuit Judges, dissenting from denial of rehearing en banc:

My dissent from the panel’s disposition of this case sets forth my reasons for concluding that the distress sale policy is a constitutional exercise of congressional power. For several reasons, I regard this case as sufficiently important to warrant en banc reconsideration.

First, the continued use of the distress sale policy has been mandated by an Act of Congress. The panel opinions in this case rely heavily on the Supreme Court’s decisions in Wygant v. Jackson Board of Education, 476 U.S. 267 , 106 S.Ct. 1842 , 90 L.Ed.2d 260 (1986) and City of Richmond v. J.A. Croson Co., — U.S. -, 109 S.Ct. 706 , 102 L.Ed.2d 854 (1989), both of which involved affirmative plans initiated by local authorities. Of the six Justices who comprised the Croson majority, however, four *959 drew an express distinction between the expansive powers of Congress and the more limited powers of state and local governments. See 109 S.Ct. at 719 (Opinion of O’Connor, J.) (“That Congress may identify and redress the effects of society-wide discrimination does not mean that, a fortiori, the States and their political subdivisions are free to decide that such remedies are appropriate”); id. at 736 (Scalia, J., concurring) (“[I]t is one thing to permit racially based conduct by the Federal Government — whose legislative powers concerning matters of race were explicitly enhanced by the Fourteenth Amendment, see U.S. Const., Amdt. 14, § 5 — and quite another to permit it by the precise entities against whose conduct in matters of race that Amendment was specifically directed, see Amdt. 14, § 1”). Croson certainly did not resolve the substantial questions posed by congressional programs which mandate the use of racial preferences. In fact, the Croson Court’s curtailment of state and local affirmative action programs makes the issue of congressional authority all the more important. This issue alone merits en banc review.

Second, the agency itself, despite its pri- or misgivings, has now indicated clearly that it supports the distress sale policy — a fact which was not free from doubt at the time of the panel’s decision. 1 Portions of the panel opinions also cast doubt upon other FCC policies designed to increase minority participation in broadcast ownership as a means of enhancing programming diversity. These policies include the consideration of race as one element in comparative licensing procedures — a practice only recently reaffirmed by this Court in Winter Park. Substantial uncertainty now exists concerning the scope of the Commission’s authority to consider race in its licensing decisions. En banc rehearing is especially desirable in view of the fact that this court is the exclusive forum for review of the FCC’s licensing policies.

Finally, the panel’s disposition of this case creates considerable doubt as to whether the pursuit of diversity remains a viable justification for affirmative action programs in any setting. This aspect of the panel opinions has constitutional ramifications stretching well beyond the broadcasting context; clearly it calls into question the constitutionality of affirmative action programs in student admissions at public universities. 2 A decision with such *960 sweeping implications is surely an appropriate subject of en banc reconsideration.

For the foregoing reasons, I dissent from the denial of rehearing en banc. The denial of review, by an equally divided court, 3 has the effect of invalidating a congressional enactment — as well as a longstanding, vigorously supported agency program —designed to address the dearth of minority voices within the nation’s broadcast media. The Congress and the FCC deserve the consideration of the full court on such a serious matter.

. Judge MacKinnon attaches great significance to the fact that the agency’s decision to seek rehearing was made by a 2-1 vote. My colleague provides lengthy excerpts from FCC Chairman Dennis Patrick’s dissent from the Commission’s position to petition for en banc review. Since Chairman Patrick was the lone dissenter, and since he has resigned from his post on the Commission, effective upon the appointment of his successor, his views are hardly the best indicator of the agency’s current position.

Moreover, Chairman Patrick’s opposition to rehearing of this case was hardly unequivocal. The Chairman stated:

In light of the importance and complexity of these issues, particularly given recent Congressional actions and the varying opinions in Shurberg and [ Winter Park Communications, Inc. v. FCC, 873 F.2d 347 (D.C.Cir.1989) ], I would petition the D.C. Circuit to hear Shur-berg en banc and support a petition for rehearing on Winter Park. Both cases could be considered together and the court could give us definitive guidance. But I cannot support my fellow Commissioners' approach of requesting only partial enlightenment in this area.

Dissenting Statement of Chairman Dennis R. Patrick at 3.

Nor do the agency’s recent doubts concerning the distress sale policy impugn the Commission's current support. After all, the FCC's prior enforcement of the fairness doctrine did not invalidate its recent decision that the doctrine should be repealed. See Syracuse Peace Council v. FCC, 867 F.2d 654 (D.C.Cir.1989). The Commission’s prior doubts simply reflect the fact that this is a complex and difficult area of the law — hardly an argument against en banc review.

. The original panel produced three different views on this issue. Judge Silberman expressed doubt as to whether the diversity rationale for racial preferences remains viable in light of Croson, even in the context of higher education. See Silberman op. at 919-20. Judge Mac-Kinnon declined to reach the question. See MacKinnon op. at 930 n. 11. I expressed the view that the pursuit of diversity is a sufficiently important interest to justify the use of racial preferences. See Wald op. at 941-42. Certainly the panel opinions do not foreclose all diversity-based plans in other contexts, but they are likely to spawn considerable uncertainty and confu *960 sion among public administrators in a wide range of settings — most notably in education.

Moreover, all nine Justices in Regents of the University of California v. Bakke, 438 U.S. 265 , 98 S.Ct. 2733 , 57 L.Ed.2d 750 (1978), concluded that Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d, imposes restrictions at least as severe as those established by the Constitution. See Bakke, 438 U.S. at 286-87 , 98 S.Ct. at 2746-47 (Opinion of Powell, J.); id. at 328-40 , 98 S.Ct. at 2767-73 (Opinion of Brennan, White, Marshall, and Blackmun, JJ.); id. at 416, 98 S.Ct. at 2812 (Opinion of Stevens, J.). If public university admissions programs which take account of race are constitutionally proscribed, that proscription would also apply to private universities receiving federal funds.

. I would note that when an en banc court is equally divided on the merits, the decision of the agency is affirmed. See Handbook of Practice and Internal Procedures, United States Court of Appeals for the District of Columbia Circuit at 68 (1987).