Amicus Curiae Brief — Students for Fair Admissions, Inc., Petitioner v. University of North Carolina, et al.

Nos. 20-1199 and 21-707

In the

Supreme Court of the United States

STUDENTS FOR FAIR ADMISSIONS, INC.,

Petitioner,

v.

PRESIDENT & FELLOWS OF HARVARD COLLEGE,

Respondent.

STUDENTS FOR FAIR ADMISSIONS, INC.,

Petitioner,

v.

UNIVERSITY OF NORTH CAROLINA, et al.,

Respondents.

On Writs of Certiorari to the United States Courts

of A ppeals for the First and Fourth Circuits

BRIEF IN SUPPORT OF RESPONDENTS OF AMICI

CURIAE MULTICULTURAL MEDIA, TELECOM AND

INTERNET COUNCIL, INC., NATIONAL ASSOCIATION OF

BLACK OWNED BROADCASTERS, NATIONAL HISPANIC

FOUNDATION FOR THE ARTS, EMMA BOWEN FOUNDATION

FOR MINORITY INTERESTS IN MEDIA, AND NATIONAL

NEWSPAPER PUBLISHERS ASSOCIATION

Tara M. Corvo

Christen B’anca Glenn

Mintz, Levin, Cohn, Ferris,

Glovsky and Popeo, P.C.

555 12th Street, NW,

Suite 1100

Washington, D.C. 20004

(202) 434-7300

August 1, 2022

314579

Emily K anstroom Musgrave

Counsel of Record

Susan Finegan

A ndrew Nathanson

Courtney Herndon

Mintz, Levin, Cohn, Ferris,

Glovsky and Popeo, P.C.

One Financial Center

Boston, MA 02111

(617) 542-6000

ekmusgrave@mintz.com

Counsel for Amici Curiae

i

TABLE OF CONTENTS

Page

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . i

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . iii

INTEREST OF AMICI CURIAE . . . . . . . . . . . . . . . . . . 1

INTRODUCTION AND SUMMARY OF THE

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

I.

ELIMINATING THE USE OF RACE

A S A FAC T OR I N A DM I S SIONS

C O U L D A D V E R S E LY A F F E C T

COMMUNICATIONS POLICIES AND

PROGRAMS DESIGNED TO PROMOTE

DIVERSITY AND EQUITY . . . . . . . . . . . . . . . . 6

II. USI NG R ACE A S A FAC T OR I N

ADMISSIONS PROMOTES A DIVERSE

A N D INCLUSI V E PI PELINE OF

STUDENTS FROM COLLEGES AND

UNIVERSITIES TO LEADERS IN THE

COMMUNICATIONS INDUSTRY . . . . . . . . . 16

A. T h e use of r ace a s a fac t or i n

admissions promotes a diverse and

inclusive workforce, which is critical

to the success of the communications

industry . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

ii

Table of Contents

Page

B. D i v ersit y in the communications

industry relies on diversity in colleges

and universities.

. . . . . . . . . . . . . . . . . . . . .20

III. ELIMINATING THE USE OF RACE

A S A FAC T OR I N A DM I S SIONS

COULD STIFLE THE CREATION AND

MAINTENANCE OF THE DIVERSE

COMMUNICATIONS MARKETPLACE

THAT CONGRESS INTENDED. . . . . . . . . . . 21

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

iii

TABLE OF CITED AUTHORITIES

Page

CASES

Associated Press v. United States,

326 U.S. 1 (1945) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

FCC v. Prometheus Radio Project,

141 S. Ct. 1150 (2021) . . . . . . . . . . . . . . . . . . . . . . . . . 10

Fisher v. University of Texas at Austin,

579 U.S. 365 (2016) . . . . . . . . . . . . . . . . . . . . . 17, 18, 20

Grutter v. Bollinger,

539 U.S. 306 (2003) . . . . . . . . . . . . . . . . . . . . . . . . 18, 20

Regents of Univ. of California v. Bakke,

438 U.S. 265 (1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Students for Fair Admissions, Inc. v.

President & Fellows of Harvard College,

980 F.3d 157 (1st Cir. 2020) . . . . . . . . . . . . . . . . . . . . 20

Turner Broadcasting System, Inc. v. FCC,

512 U.S. 622 (1994) . . . . . . . . . . . . . . . . . . . . . . . . . 7, 23

TV 9 Inc. v. FCC,

495 F.2d 929 (D.C. Cir. 1973) . . . . . . . . . . . . . . . . . . . 23

iv

Cited Authorities

Page

CONSTITUTION & STATUTES

47 U.S.C. § 151 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

47 U.S.C. § 309(j)(3)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

47 U.S.C. § 309(j)(4)(D) . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

47 U.S.C. § 532 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

47 U.S.C. § 532(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 10

OTHER AUTHORITIES

47 C.F.R. §§ 1.2110, 27.1102, 27.1104, 27.1106, 27.1301 . . 8

47 C.F.R. §§ 73.2080, 76.73, 76.75 . . . . . . . . . . . . . . . . . . 12

47 C.F.R. §§ 76.970-76.977 . . . . . . . . . . . . . . . . . . . . . . . . 10

2014 Quadrennial Regulatory Review – Review of

the Commission’s Broadcast Ownership Rules

and Other Rules Adopted Pursuant to Section

202 of the Telecommunications Act of 1996,

Second Report and Order, 31 FCC Rcd 9864

(2016) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 11, 24

Adam Grant, What Straight-A Students Get

Wrong, N.Y. T imes (Dec. 8, 2018), https://

www.nytimes.com/2018/12/08/opinion/collegegpa-career-success.html. . . . . . . . . . . . . . . . . . . . . 18-19

v

Cited Authorities

Page

Adam Jacobson, Diverse Content: A Driver of TV

Antenna Use, Radio + Television Business

Report (Feb. 15, 2022), https://www.rbr.com/

diverse-content-a-driver-of-tv-antenna-use/ . . . . . . 24

Af fordable Connectivity Program , et al .,

Repor t and Order and Fur ther Notice

of Proposed Rulemaking, FCC 22-2 (rel.

Jan. 21, 2022) (statement of Chairwoman

Jessica Rosenworcel) . . . . . . . . . . . . . . . . . . . . . . . . . 14

Brief of Former Commissioners and General Counsel

of the Federal Communications Commission and

the Minority Media and Telecommunications

Council, As A mici Curiae in Support of

Respondents, Fisher v. University of Texas at

Austin, 570 U.S. 297 (No. 11-345) (2012) . . . . . . . . . 20

Broadcast Varied Ownership Incentives for

Com mu n ity Ex pa nded S er v ice Act ,

S. 2456, 117th Cong. (2021) . . . . . . . . . . . . . . . . . . 12, 13

Commissioner Nathan Simington Remarks at

the Multicultural Media, Telecom & Internet

Council 2022 Former FCC Chairs Symposium,

FCC (July 20, 2022), https://docs.fcc.gov/

public/attachments/DOC-385497A1.pdf . . . . . . . . . 21

Cox Digital Academy, Cox, https://www.cox.com/

residential/internet/connect2compete/digitalacademy.html (last visited July 15, 2022) . . . . . . . . . 14

vi

Cited Authorities

Page

David Honig, How the FCC Helped Exclude

Minorities from Ownership of the Airwaves,

M M T C (O c t . 5 , 2 0 0 6 ) , ht t p s : // w w w.

mmtconline.org/wp-content/uploads/2020/10/

How-the-FCC-Helped-Exclude-Minoritesfrom-Owners-of-the-Airwaves.pdf . . . . . . . . . . . . . . 21

Ernst & Young LLP, FCC Econometric Analysis

of Potential Discrimination Utilization

Ratios for Minority-and Women-Owned

Companies in FCC Wireless Spectrum Auctions,

FCC, https://transition.fcc.gov/opportunity/

meb_study/auction_utilization_study.pdf . . . . . . . . . . 9

Er w in G. K rasnow and Lisa M. Fowlkes,

T h e FC C ’s Min o r i ty Ta x Ce r tif i c a t e

Program: A Proposal for Life After Death,

51 Fed. Comm. L.J. 665, 670 (1999) . . . . . . . . . . . . . . 12

Executive Order No. 13985 on Advancing

Racial Equity and Support for Underserved

C o m m u n i t i e s T h r o u g h t h e Fe d e r a l

Government, T he White House (Jan 20,

2021), https://www.whitehouse.gov/briefingr o om / pr e s ident i a l - a c t ion s / 2 0 21 / 01 / 2 0 /

executive-order-advancing-racial-equityand-support-for-underserved-communitiesthrough-the-federal-government/ . . . . . . . . . . . . . . . 15

Expanding Broadcast Ownership Opportunities

Act, H.R. 4871, 117th . . . . . . . . . . . . . . . . . . . . . . . . . . 13

vii

Cited Authorities

Page

Get Involved , How to be a Champion for

Digital Equity, C ox , https://www.cox.com/

residential/internet/connect2compete/getinvolved.html (last visited July 15, 2022) . . . . . . . . . 14

I n t el A n d D a l berg , D ecodi ng D i v er si t y :

T he F inancial A nd Economic R eturns To

Diversity In Tech (June 2016), https://dalberg.

com/wp-content/uploads/2016/06/Diversityreport.pdf . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 18, 19

Internet Essentials, C omca st, https://w w w.

internetessentials.com/ (last visited July

26, 2022) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Jon Sallet, FCC Transaction Review: Competition

and the Public Interest, FCC Blog (Aug.

12, 2014, 12:39 PM), https://w w w.fcc.gov/

news-events/blog/2014/08/12/fcc-transactionreview-competition-and-public-interest . . . . . . . . . . . 9

Katherine W. Phillips, How Diversity Makes

Us Smarter, S cientific A merican (Oct. 1,

2014), https://www.scientificamerican.com/

article/how-diversity-makes-us-smarter/ . . . . . . . . 16

Letter from Jessica Rosenworcel, Chairwoman,

FCC, to the Honorable Jamaal Bowman, et

al., U.S. House of Representatives (Aug. 31,

2021), https://docs.fcc.gov/public/attachments/

DOC-375654A2.pdf . . . . . . . . . . . . . . . . . . . . . . . . . . .23

viii

Cited Authorities

Page

McKinsey & Company – Diversity Wins: How Inclusion

Matters 4 (May 2020), https://www.mckinsey.

com/~/media/mckinsey/featured%20insights/

diversity%20and%20inclusion/diversity%20

wins%20how%20inclusion%20matters/diversitywins-how-inclusion-matters-vf.pdf . . . . . . . . . . . . . . 17

Media Bureau and Office of Economics and Analytics,

Fifth Report on Ownership of Broadcast

Stations, FCC (Sept. 2021), https://docs.fcc.

gov/public/attachments/DA-21-1101A1.pdf . . . . . . . 21

Overview of the FCC’s Review of Significant

Transactions, FCC, https://w w w.fcc.gov/

reports-research/guides/review-of-significanttransactions (last updated July 10, 2014) . . . . . . . . . . 9

Review of the Commission’s Broadcast and

Cable Equal Employment Opportunity Rules

and Policies, Further Notice of Proposed

Rulemaking, 36 FCC Rcd 12055 (2021)

(statement of Commissioner Geoffrey Starks) . 23, 24

R obi n You ng a nd S a m a nt h a R aphel son ,

Diversifying The Radio Dial: Black Station

Owners Demand Action, WBUR (July 22, 2020),

https://www.wbur.org/hereandnow/2020/07/22/

black-owned-radio-stations . . . . . . . . . . . . . . . . . . . . 22

Rules and Policies to Promote New Entry and

Ownership Diversity in the Broadcasting

Services, Report and Order, 33 FCC Rcd 7911

(2018) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

ix

Cited Authorities

Page

S. Ct. Rule 37.6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Stacie de A rmas, A Relevancy Revolution:

The Impor tance of Spanish Langua ge

Content, Nielsen (Feb. 24, 2022), https://

w w w. n i e l s e n . c o m / u s /e n / i n s i g ht s /

ar ticle/2022 /a-relevancy-revolution-theimportance-of-spanish-language-content/ . . . . . . . . 23

St a t e m e n t of Nin e Fo r m e r FC C Ch air s

Recommending Reinstatement of the FCC’s Tax

Certificate Policy (Sept. 7, 2021), https://www.

mmtconline.org/wp-content/uploads/2021/09/

FCCChairstaxcertificatestatement.pdf . . . . . . . . . . 13

Up d a t i n g Pa r t 1 C o m p e t i t i v e Bi d d i n g

Rules, et al., Report and Order, Order on

Reconsideration of the First Report and

Order, Third Order on Reconsideration of

the Second Report and Order, Third Report

and Order, 30 FCC Rcd 7493 (2015) . . . . . . . . . . . . . . 8

William H. Frey, New 2020 Census Results Show

Increased Diversity Countering DecadeLong Declines in Amer ica’s White and

Youth Populations, B rooking s (Aug. 13,

2021), https://www.brookings.edu/research/

new-2020-census-results-show-increaseddiversity-countering-decade-long-declines-inamericas-white-and-youth-populations/ . . . . . . . . . . 16

1

INTEREST OF AMICI CURIAE1

Amici are nonprofit, nonpartisan organizations that

recognize the importance of diversity, equity, and inclusion

in the communications industry and are experienced with

issues falling in the intersection between communications

policy and civil rights.

The Multicultural Media, Telecom and Internet

Council, Inc. (“MMTC”) is the technology, media, and

telecommunications industries’ leading nonpartisan,

national nonprofit diversity organization. Since opening its

doors in 1986, MMTC has worked to promote and preserve

equal opportunity, civil rights, and social justice in the mass

media, telecommunications, and broadband industries and

to close the “digital divide” on behalf of its members and

constituents, including current and prospective radio

and broadcast station owners, programmers, and others

involved in the communications sector. MMTC has helped

diverse entrepreneurs gain access to capital and become

media and telecommunications owners, breaking down

structural and regulatory barriers to entrepreneurial

opportunity. It has also fought for equal employment

opportunity in radio, television, and cable, and it has

helped diversify the communications bar by training

and deploying over 100 communications lawyers and

professionals.

1. In letters filed with the Clerk, counsel for all parties

have consented in writing to the filing of this brief. Pursuant to

S. Ct. Rule 37.6, counsel affirms that no counsel for any party

authored this brief in whole or in part, and that no person or entity

other than Amici Curiae and their counsel made any monetary

contribution to the preparation or submission of this brief.

2

The National Association of Black Owned Broadcasters

(“NABOB”) is the first and only trade organization

representing the interests of African American radio,

television, and digital media owners across the country.

NABOB was organized in 1976 by a small group of African

American broadcasters to establish a voice and a viable

presence in the industry and to address specific concerns

facing African American broadcasters. NABOB’s mission

is to improve and increase opportunities for Black and

minority owners in media. Utilizing advocacy resources,

NABOB provides information in critical business areas,

including advertising sales, station acquisition, financing,

and federal broadcast regulation.

The National Hispanic Foundation for the Arts

(“NHFA”) is the leading national Hispanic organization

concerned with issues impacting the United States Latinx

community in media. NHFA was founded in 1997 by actors

Jimmy Smits, Sonia Braga, Esai Morales, and Merel

Julia, along with attorney Felix Sanchez, to advance the

presence of Latinos in the media, telecommunications,

and entertainment industries. NHFA identifies and

launches Hispanic talent, develops and distributes

content meaningful to the Latinx community, mentors

and supports organizations committed to Hispanic arts,

studies industry opportunities and Hispanic impact,

promotes civil rights, creates a national conversation about

Latinx diversity in the media, and spotlights organizations

that engage Hispanic consumers.

The Emma Bowen Foundation for Minority Interests

in Media (“EBF”) promotes a more diverse industry by

recruiting promising students of color for multi-year paid

internships at some of the nations’ leading media and

3

technology companies, including Comcast, NBCUniversal,

Hearst Television, The New York Times, the National

Football League, Spectrum, ViacomCBS, and Discovery.

EBF Fellows work as paid interns through their college

graduation, gaining significant on-the-job training and

making connections with colleagues and mentors that

last a lifetime. EBF Fellows graduate with invaluable

work experience and a head start in whichever career

they choose.

The National Newspaper Publishers Association

(“NNPA”) is a trade organization of the more than 200

African American-owned community newspapers from

around the United States. Since its founding 79 years ago,

NNPA has been the voice of the Black community and an

incubator for news that makes history and impacts our

country. As the largest and most influential Black-owned

media resource in the United States, NNPA delivers

news, information, and commentary to over 20 million

people each week. Americans from all backgrounds seek

news from the Black perspective from NNPA-member

newspapers around the country. In the United States,

which is now among the most diverse countries in the

world, the Black Press is more relevant than ever. The

Black Press believes that the United States can best lead

the world away from racial and national antagonisms when

it accords full human and legal rights to every person,

regardless of race, color, or creed.

INTRODUCTION AND SUMMARY

OF THE ARGUMENT

Eliminating the use of race as a factor in college and

university admissions will have adverse consequences

throughout the communications industry and beyond.

4

I. Eliminating the use of race as a factor in admissions

will adversely affect communications policies and programs

designed to promote diversity and equity. Congress

has long recognized the importance of diversity in the

communications industry. First, the Communications

Act contains provisions to help promote spectrum

auction participation among certain underrepresented

groups, including racial minorities. Second, the Federal

Communications Commission (“FCC”) is required to

consider the importance of diversity in its public interest

determination when deciding whether or not to approve

mergers and acquisitions. Third, Section 612 of the

Communications Act and FCC rules, known as the leased

access rules, require all cable operators to designate

channel capacity for commercial use for unaffiliated video

programmers. Fourth, the FCC has recently reinstated a

series of broadcast ownership rules, which were designed

to foster a diversity of voices, by facilitating the acquisition

and operation of broadcast stations by diverse entrants,

including women- and minority-owned businesses.

Finally, the FCC’s Equal Employment Opportunity

(“EEO”) rules and policies have prohibited broadcasters

and Multichannel Video Programming Distributors

(“MVPDs”) from discriminating in hiring on the basis

of race, color, religion, national origin, sex, and age. An

adverse decision may expose diversity-based programs

and policies currently in place, and it could also constrain

efforts to reinstate programs and policies that successfully

promote diversity.

Further, communications industry participants

similarly promote diversity in their internal programs

and policies, following the lead of Congress and the FCC.

These communications industry participants—including

5

broadcasters, cable operators, broadband providers, and

others—have also reaffirmed the significance of diversity

in the communications sector, implementing programs

intended to achieve racial equity and support the

provision of communications services in low-income and

underserved communities. These policies and programs

directly or indirectly promote decision-making that

considers race. A decision eliminating the use of race as a

factor in admissions could have broad implications beyond

the field of higher education.

II. Using race as a factor in admissions promotes a

diverse and inclusive pipeline of students from colleges and

universities to leaders in the communications industry.

Eliminating race as a factor in admissions decisionmaking would result in a much more limited pool of diverse

applicants to communications companies. Policies that

promote a diverse and inclusive student body inevitably

promote a diverse and inclusive workforce, which is

critical to the success of the communications industry.

Indeed, diversity in the communications industry relies

on diversity in colleges and universities. Therefore, when

colleges and universities are less diverse, corporations and

organizations are likely to become less diverse due to a

shrinking candidate pipeline. This means that broadcast

stations, radio stations, and television networks will be

less likely to reflect the communities they serve and less

likely to develop diverse programming and content.

III. Eliminating the use of race as a factor in

admissions could stifle the creation and maintenance of

the diverse communications marketplace that Congress

intended. Diversity in higher education is necessary

to ensure a robust exchange of ideas through mass

6

media. Students who are educated at diverse colleges

and universities and who choose to join mass media

organizations after graduation bring with them the

awareness of a multicultural society, through exposure

to various racial and ethnic groups on campuses. In turn,

this creates a more equitable and inclusive industry that

shapes the way in which members of the public think

and interact. The need for more diverse and culturally

competent graduates entering the communications sector

is especially critical now, given the decreasing number of

minority-owned broadcast stations across the country.

Diversity in media ownership increases the potential

that diverse groups can receive programming from both

mainstream and alternative media outlets that is targeted

toward their interests and needs, which leads to greater

civic engagement. To promote a diverse communications

marketplace, there are no available or workable raceneutral alternatives. Indeed, diverse voices are needed

to communicate diverse perspectives.

ARGUMENT

I.

ELIMINATING THE USE OF RACE AS A

FACTOR IN ADMISSIONS COULD ADVERSELY

A FFEC T COM M U N ICAT IONS POLICI E S

AND PROGRAMS DESIGNED TO PROMOTE

DIVERSITY AND EQUITY.

The communications industry, and mass media in

particular, should reflect and represent everyone—all

races, ethnicities, and viewpoints. This Court and

Congress have long recognized the value of diversity in

the communications industry. Indeed, this Court has more

than once found that “‘the widest possible dissemination

7

of information from diverse and antagonistic sources

is essential to the welfare of the public.’” Turner

Broadcasting System, Inc. v. FCC, 512 U.S. 622, 663

(1994) (quoting Associated Press v. United States, 326

U.S. 1, 20 (1945)).

Similarly, Congress has emphasized the importance

of having diverse viewpoints in mass media, and it has

issued a number of statutory directives to the FCC

and the communications industry to promote a more

diverse and inclusive communications marketplace. In

the Communications Act, Congress directed the FCC

to “make available, so far as possible, to all the people

of the United States, without discrimination on the basis

of race, color, religion, national origin, or sex, a rapid,

efficient, Nation-wide, and world-wide wire and radio

communication service.” 47 U.S.C. § 151. Congress further

specified that the FCC should “promote competition in the

delivery of diverse sources of video programming and to

assure that the widest possible diversity of information

sources are made available to the public from cable systems

in a manner consistent with growth and development of

cable systems.” 47 U.S.C. § 532(a).

Following Congressional directives, the FCC has

cemented the importance of a diverse and inclusive

communications marketplace by implementing a number

of programs and policies, discussed below, that are

designed to advance racial diversity, as well as other types

of diversity.

Fi rst, the Communications Act contains t wo

provisions to help promote spectrum auction participation

among certain underrepresented groups, including

8

racial minorities. W hen auctioning spectrum and

awarding spectrum licenses, Section 309(j)(3)(B) of the

Communications Act requires the FCC to “promot[e]

economic opportunity and competition . . . by avoiding

excessive concentration of licenses and by disseminating

licenses among a wide variety of applicants, including small

businesses, rural telephone companies, and businesses

owned by members of minority groups and women.” 47

U.S.C. § 309(j)(3)(B). In addition, Section 309(j)(4)(D) of

the Communications Act requires the FCC to “ensure

that small businesses, rural telephone companies, and

businesses owned by members of minority groups and

women are given the opportunity to participate in the

provision of spectrum-based services, and, for such

purposes, consider the use of tax certificates, bidding

preferences, and other procedures.” 47 U.S.C. § 309(j)

(4)(D).

The FCC has also adopted rules that allow “designated

entities” to receive spectrum auction bidding credits—i.e.,

percentage discounts on spectrum licenses—provided

that they prevail at auction. See, e.g., 47 C.F.R. §§ 1.2110,

27.1102, 27.1104, 27.1106, 27.1301. The purpose of this

program is to encourage participation in spectrum

auctions by small businesses, rural businesses, and

businesses owned by members of minority groups and

women, and to provide them with, among other things,

an “on-ramp into the wireless business.” Updating Part

1 Competitive Bidding Rules, et al., Report and Order,

Order on Reconsideration of the First Report and Order,

Third Order on Reconsideration of the Second Report

and Order, Third Report and Order, 30 FCC Rcd 7493,

¶ 134 (2015).

9

These statutory provisions and FCC rules have been

the first step toward righting a historical wrong. For too

long, minority-owned applicants were highly unlikely to

win even one spectrum license at auction in comparison to

non-minority-owned applicants. See Ernst &Young LLP,

FCC Econometric Analysis of Potential Discrimination

Utilization Ratios for Minority-and Women-Owned

Companies in FCC Wireless Spectrum Auctions, FCC,

at 4, https://transition.fcc.gov/opportunity/meb_study/

auction_utilization_study.pdf. As a result of Congressional

and regulatory action, however, some minority-owned

businesses have successfully participated in recent

spectrum auctions and acquired significant spectrum

resources, and will be able to continue to do so, helping

to mitigate an excessive concentration of wireless assets

among a particular type of applicant.

Second, the FCC must take into account the “public

interest” when it reviews transactions pertaining to

licenses and authorizations, and decides whether or not to

approve mergers and acquisitions, and in making its public

interest determination, the agency is required to consider

the importance of diversity. As part of this determination,

“the FCC examines the likely effects of the transfer on

. . . the diversity of license holders, and the diversity of

information sources and services available to the public.”

Overview of the FCC’s Review of Significant Transactions,

FCC, https://w w w.fcc.gov/reports-research/guides/

review-of-significant-transactions (last updated July

10, 2014); see also Jon Sallet, FCC Transaction Review:

Competition and the Public Interest, FCC Blog (Aug.

12, 2014, 12:39 PM), https://www.fcc.gov/news-events/

blog/2014/08/12/fcc-transaction-review-competitionand-public-interest (“[T]he ‘public interest’ standard is

10

not limited to purely economic outcomes. It necessarily

encompasses the ‘broad aims of the Communications

Act,’ which include, among other things, . . . ensuring

a diversity of information sources and services to the

public.”) (internal citations omitted).

Third, Section 612 of the Communications Act (47

U.S.C. § 532) and sections 76.970 through 76.977 of the

FCC’s rules (47 C.F.R. §§ 76.970-76.977) require all cable

operators to reserve channel capacity for commercial

use by unaffiliated video programmers. The purpose of

this requirement, known as leased access, is “to promote

competition in the delivery of diverse sources of video

programming and to assure that the widest possible

diversity of information sources are made available to the

public from cable systems in a manner consistent with

growth and development of cable systems.” 47 U.S.C.

§ 532(a).

Fourth, the FCC has a series of broadcast ownership

rules—the Local Television Ownership Rule, Local Radio

Ownership Rule, Revenue-Based Eligible Entity Standard,

and Incubator Program—all recently reinstated by this

Court in FCC v. Prometheus Radio Project, 141 S. Ct. 1150

(2021), which were designed to “foster a diversity of voices,

by facilitating the acquisition and operation of broadcast

stations by small businesses, new entrants, and minorityand female-owned businesses.” 2014 Quadrennial

Regulatory Review – Review of the Commission’s

Broadcast Ownership Rules and Other Rules Adopted

Pursuant to Section 202 of the Telecommunications Act

of 1996, Second Report and Order, 31 FCC Rcd 9864, ¶ 237

(2016) (“2014 Quadrennial Review Report and Order”).

11

The Local Television Ownership Rule “promotes

opportunities for diversity in broadcast ownership by

helping to ensure the presence of independently-owned

broadcast television stations in the local market, thereby

increasing the likelihood of a variety of viewpoints

and preser ving ow nership opportunities for new

entrants.” Id. Likewise, the Local Radio Ownership Rule

promotes diversity “by helping to ensure the presence of

independently owned broadcast radio stations in the local

market, thereby increasing the likelihood of a variety of

viewpoints and preserving ownership opportunities for

new entrants.” Id. ¶125. Rather than specifically targeting

minorities, the FCC, through the Revenue-Based Eligible

Entity Standard, created a category of “eligible entities”

that are subject to less restrictive media ownership rules

in comparison to other entities, based on revenue. Id. ¶ 286.

And the Incubator Program was designed to help facilitate

diverse broadcast station ownership by formally pairing a

broadcasting entity with limited resources and experience

with a more established broadcaster that provides the other

broadcasting entity with training, financial resources, and

other assistance. See Rules and Policies to Promote New

Entry and Ownership Diversity in the Broadcasting

Services, Report and Order, 33 FCC Rcd 7911 (2018).

Although the Incubator Program does not specifically

target minorities, the intent of the program is to promote

racial and ethnic diversity.

Finally, the FCC’s EEO rules and policies have

prohibited broadcasters and MVPDs from discriminating

in employment on the basis of race, color, religion, national

origin, sex, and age for some FCC regulatees, for over

fifty years. Under the FCC’s rules, broadcasters with

five or more full-time employees, and MVPDs with six

12

or more full-time employees, are required to establish,

maintain, and carry out an EEO recruitment program

that is designed to prevent discrimination and ensure

equal opportunity. See 47 C.F.R. §§ 73.2080, 76.73, 76.75.

In carrying out the recruitment program, broadcasters

and MVPDs must conduct broad public outreach of job

openings, participate in and host job fairs, establish an

internship program for community members, establish

training and mentoring programs for station personnel,

and participate in scholarship programs. See id.

Disturbing statutory provisions and rules that support

and foster diversity-based programs and policies that are

currently in place will make it more difficult to reinstate

programs and policies that promote diversity, including,

for example, bipartisan efforts to reinstate the FCC’s

minority tax certificate program. The now-repealed

program (which was in effect between 1978 and 1995)

was the most effective vehicle for advancing minority

broadcast ownership—ownership of broadcast stations

by people of color. See Erwin G. Krasnow and Lisa M.

Fowlkes, The FCC’s Minority Tax Certificate Program:

A Proposal for Life After Death, 51 Fed. Comm. L.J.

665, 670 (1999). The program provided broadcasters a

tax incentive to sell their stations to minority owners.

During its 17 years in operation, the program quintupled

minority broadcast ownership across the country. See id.

Before the program’s existence in 1978, only 40 of 8,500

broadcast stations were minority owned. See id. During

the program’s operation, minorities acquired 288 radio

stations, 43 television stations, and 31 cable systems.

See id. The Broadcast Varied Ownership Incentives for

Community Expanded Service (VOICES) Act, introduced

in the U.S. Senate, and the Expanding Broadcast

13

Ownership Opportunities Act, introduced in House of

Representatives, would amend the Communications Act

to reinstate and improve the program, reestablishing the

FCC’s commitment to advancing broadcast ownership

diversity. See Broadcast Varied Ownership Incentives for

Community Expanded Service Act, S. 2456, 117th Cong.

(2021); Expanding Broadcast Ownership Opportunities

Act, H.R. 4871, 117th Cong. (2021). Several interest

groups, including Amici MMTC and NABOB, as well as

nine former chairpersons of the FCC, have supported

the legislation and urged Congress to require the FCC

to reestablish the program. See Statement of Nine

Former FCC Chairs Recommending Reinstatement of

the FCC’s Tax Certificate Policy (Sept. 7, 2021), https://

w w w.mmtconline.org/wp-content/uploads/2021/09/

FCCChairstaxcertificatestatement.pdf.

Communications industry participants similarly

promote diversity in their internal programs and

policies. Following Congress and the FCC’s lead,

communications industry participants—including

broadcasters, cable operators, broadband providers and

others—have also reaffirmed the significance of diversity

in the communications sector, implementing a number of

programs that are intended to achieve racial equity and

support the provision of communications services in lowincome and underserved communities. These policies and

programs directly or indirectly promote decision-making

that uses race as a factor.

For example, Comcast Corporation’s (“Comcast”)

Internet Essentials program provides high-speed internet

access to low-income consumers (i.e., consumers who are

eligible for public assistance programs like the National

14

School Lunch Program, Housing Assistance, Medicaid,

and the Supplemental Nutrition Assistance Program)

at a discounted price. See Internet Essentials, Comcast,

https://www.internetessentials.com/ (last visited July

26, 2022). Through this program, consumers also receive

free internet training and access to Comcast Xfinity WiFi

hotspots. Id. While subscribers of any race are eligible

for the Internet Essentials program, it undoubtedly

has a larger impact on helping people of color achieve

access to broadband service, something that has been

recognized as “essential for full participation in modern

life.” Affordable Connectivity Program, et al., Report

and Order and Further Notice of Proposed Rulemaking,

FCC 22-2 (rel. Jan. 21, 2022) (statement of Chairwoman

Jessica Rosenworcel).

In addition, Cox Communications (“Cox”) is helping to

improve digital equity through its Connect2Compete and

ConnectAssist low-cost internet solutions, which provide

high-speed broadband access to low-income households

at a low cost. See Get Involved, How to be a Champion

for Digital Equity, Cox, https://www.cox.com/residential/

internet/connect2compete/get-involved.html (last visited

July 15, 2022). Cox is also committed to collaborating with

suppliers from diverse backgrounds, and it is involved in

various community service initiatives, such as the Cox

Digital Academy, which provides free digital literacy

training. See Cox Digital Academy, Cox, https://www.

cox.com/residential/internet/connect2compete/digitalacademy.html (last visited July 15, 2022). These programs

are important because broadband access enables people

of color and others from low-income and underserved

communities to gain new skills, apply for and secure

gainful employment, attend online classes, and engage

in civic dialogue.

15

The Biden Administration, like former administrations,

has also emphasized the importance of diversity, equity,

and inclusion. In January 2021, President Biden signed

Executive Order No. 13985, which directs agencies within

the Federal Government to assess whether people from

underserved communities experience systemic barriers in

accessing opportunities available pursuant to the agencies’

policies and programs. See Executive Order No. 13985 on

Advancing Racial Equity and Support for Underserved

Communities Through the Federal Government, T he

White House (Jan 20, 2021), https://www.whitehouse.

gov/ briefing-room/presidential-actions/2021/01/20/

executive-order-advancing-racial-equity-and-supportfor-underserved-communities-through-the-federalgovernment/. Agencies like the FCC were “strongly

encouraged” to conduct the assessment. See id. The

Executive Order confirms that “[a]ffirmatively advancing

equity, civil rights, racial justice, and equal opportunity

is the responsibility of the whole of our Government”

and explains that “because advancing equity requires a

systematic approach to embedding fairness in decisionmaking processes, executive departments and agencies .

. . must recognize and work to redress inequities in their

policies and programs that serve as barriers to equal

opportunity.” Id.

As a result, a decision eliminating the use of race as a

factor in admissions could have broad implications beyond

the field of higher education.

16

II. USING RACE AS A FACTOR IN ADMISSIONS

PROMOTES A DIVERSE AND INCLUSIVE

PIPELINE OF STUDENTS FROM COLLEGES

AND UNIVERSITIES TO LEADERS IN THE

COMMUNICATIONS INDUSTRY.

In addition to negatively impacting communications

industry rules and policies, eliminating the use of race as

a factor in admissions would result in a much more limited

pool of diverse applicants to communications companies.

A.

The use of race as a factor in admissions promotes

a diverse and inclusive workforce , which is

critical to the success of the communications

industry.

The United States is increasingly becoming more

racially and culturally diverse. Results from the 2020

Census show that people of color—people identifying

as Black, Asian American, Native Hawaiian or Pacific

Islander, Native American, and Latino or Hispanic—make

up over 40 percent of the U.S. population. See William H.

Frey, New 2020 Census Results Show Increased Diversity

Countering Decade-Long Declines in America’s White

and Youth Populations, Brookings (Aug. 13, 2021), https://

www.brookings.edu/research/new-2020-census-resultsshow-increased-diversity-countering-decade-longdeclines-in-americas-white-and-youth-populations/. It is

therefore important that companies and organizations in

the communications industry are able to hire individuals

from diverse racial and ethnic backgrounds who are not

only culturally competent, but also able to meet the needs

of the U.S. population and participate in the interconnected

and global marketplace. See Katherine W. Phillips, How

17

Diversity Makes Us Smarter, Scientific A merican (Oct.

1, 2014), https://www.scientificamerican.com/article/

how-diversity-makes-us-smarter/ (“Diversity enhances

creativity. It encourages the search for novel information

and perspectives, leading to better decision-making and

problem-solving.”); see also Brief for Fortune-100 and

Other Leading American Businesses as Amici Curiae

Supporting Respondents, Fisher v. University of Texas

at Austin, 579 U.S. 365 (2016) (No. 14-981).

Companies often seek out diverse employees because a

diverse workforce generates significant economic benefits.

A 2020 study from McKinsey & Company shows that

companies that are racially and ethnically diverse are

more likely to financially outperform their non-diverse

peers. See Mckinsey & C ompany – D iversity Wins :

How I nclusion M atters 4 (May 2020), https://www.

mckinsey.com/~/media/mckinsey/featured%20insights/

diversity%20and%20inclusion/diversity%20wins%20

how %20inclusion%20matters/diversity-w ins-howinclusion-matters-vf.pdf. Companies in the top quartile

of racial and ethnic diversity outperform non-diverse

companies in the fourth quartile of racial and ethnic

diversity by 36 percent in terms of profitability. See id.

To illustrate, by increasing the amount of racial and

ethnic diversity among employees, companies in the U.S.

technology industry could generate up to $570 billion

in value. See Intel A nd Dalberg, Decoding Diversity:

T he Financial A nd Economic Returns To Diversity

In T ech (June 2016), https://dalberg.com/wp-content/

uploads/2016/0 6/ Diversity-repor t.pdf (“D ec odi ng

Diversity Report”). Increases in racial or ethnic diversity

positively correlate with increases in the operating

18

margin. See id. Therefore, an increase in racial and ethnic

diversity could represent an increase in $6-7 billion in

operating earnings across the entire technology industry.

See id.

Equally important, the formal and informal education,

training, and skills development that students receive at

diverse colleges and universities help students become

qualified for, and prepared to succeed in the workforce.

Indeed, diverse colleges and university ‘“better prepare[]

students for an increasingly diverse workforce and

society”’ in comparison to those higher education

institutions that are not diverse. Fisher v. Univ. of Texas at

Austin, 579 U.S. 365, 381 (2016). A racially diverse student

body is necessary to ensure that college and university

campuses reflect the real world. Diverse colleges and

universities expose students to a variety of viewpoints

and perspectives, which help students meaningfully

contribute to and participate in diverse communities

after graduation. As this Court affirmed in Grutter,

“[t]hrough exposure to widely diverse people, cultures,

ideas, and viewpoints,” students who are educated in

diverse environments are able to contribute unique

thoughts and perspectives to the workforce, improving

their respective organizations overall and helping them

become more inclusive. See Grutter v. Bollinger, 539 U.S.

306, 330 (2003); see also Regents of Univ. of California

v. Bakke, 438 U.S. 265, 313 (1978). Moreover, students

who are educated at diverse colleges and universities

also develop unique skills that enable them to think more

creatively, view issues from multiples angles, and be more

flexible with how they approach challenges and devise

solutions to problems. See Adam Grant, What Straight-A

Students Get Wrong, N.Y. Times (Dec. 8, 2018), https://

19

www.nytimes.com/2018/12/08/opinion/college-gpa-careersuccess.html.

At most colleges and universities across the United

States, a culture of inclusivity is often cultivated and

celebrated. By having the space to learn and grow

alongside individuals who are dissimilar to themselves,

students who are educated at diverse higher education

institutions are likely to be more sensitive to and tolerant

of, different backgrounds, races, ethnicities, cultures,

and experiences, reducing incidents of discrimination

and stereotyping in the workplace. Because of their

undergraduate experiences, students from diverse

colleges and universities see racial and ethnic diversity

as a requirement and expect inclusivity from employers,

thereby improving the culture of the workforce for

everyone involved.

An open and inclusive work environment generally

contributes to employee satisfaction and retention,

particularly for racially and ethnically diverse employees.

Individuals are likely to remain in an industry when they

feel that their differences, as well as their colleagues’

differences, are respected and valued. A recent study from

Intel shows that “Millennials are 38 percent more likely to

feel engaged and 28 percent more likely to feel empowered

when they are working in an organization that they believe

fosters inclusivity.” See Decoding Diversity Report; see

also id. (“An overwhelming majority of Millennials prefer

not to work at organizations they see as unsupportive of

innovation, and 40 percent of these same Millennials see

a lack of gender and racial/ethnic diversity as a major

barrier to innovation.”).

20

B. Diversity in the communications industry relies

on diversity in colleges and universities .

Colleges and universities are the “training ground

for a large number of our Nation’s leaders.” Grutter, 539

U.S. at 332. When colleges and universities are more

diverse, corporations and organizations, including those

in the communications industry, become more diverse.

See Students for Fair Admissions, Inc. v. President &

Fellows of Harvard College, 980 F.3d 157, 173-74 (1st

Cir. 2020) (“[G]lobal companies want to hire and promote

graduates who have been educated in diverse settings.”).

The benefits gained from a diverse industry workforce

“are not theoretical, but real” because our global market

is diverse. See Grutter, 539 U.S. at 330. However, when

colleges and universities are less diverse, corporations

and organizations are likely to become less diverse due

to a shrinking candidate pipeline. In the communications

industry, this means that broadcast stations, radio

stations, and television networks would be less likely to

reflect the communities that they serve, and less likely

to develop diverse programming and content. See Brief

of Former Commissioners and General Counsel of the

Federal Communications Commission and the Minority

Media and Telecommunications Council, As Amici Curiae

in Support of Respondents, Fisher v. University of Texas

at Austin, 570 U.S. 297 (No. 11-345) (2012).

21

III. ELIMINATING THE USE OF RACE AS A

FACTOR IN ADMISSIONS COULD STIFLE

THE CREATION AND MAINTENANCE OF THE

DIVERSE COMMUNICATIONS MARKETPLACE

THAT CONGRESS INTENDED.

Diversity in higher education is necessary to ensure

a robust exchange of ideas through mass media. Students

who are educated at diverse colleges and universities

and who choose to join mass media organizations

after graduation bring with them the awareness of a

multicultural society, through exposure to various racial

and ethnic groups on their respective campuses. In turn,

this creates a more equitable and inclusive industry that

shapes the way in which members of the public think and

interact. New media, such as blogs, podcasts, and social

media websites, and mass media, particularly over-the-air

broadcasting, undoubtedly has a significant impact on our

society’s educational, cultural, and political development,

which makes it “the most influential industry in the nation.”

David Honig, How the FCC Helped Exclude Minorities

from Ownership of the Airwaves, MMTC (Oct. 5, 2006),

https://www.mmtconline.org/wp-content/uploads/2020/10/

How-the-FCC-Helped-Exclude-Minorites-from-Ownersof-the-Airwaves.pdf.

The need for more diverse and culturally competent

graduates entering the communications sector is

especially critical now given the decreasing number of

minority-owned broadcast stations across the country.

See Commissioner Nathan Simington Remarks at the

Multicultural Media, Telecom & Internet Council 2022

Former FCC Chairs Symposium, FCC (July 20, 2022),

https://docs.fcc.gov/public/attachments/DOC-385497A1.

22

pdf (“I can think of no better way to increase the stake

that diverse communities hold in the vital public institution

of broadcast television and radio than by encouraging

minority students to pursue careers in the broadcast

industry.”). While people of color comprise a growing

percentage of the U.S. population, minority ownership

of mass media, and broadcast stations in particular,

is rapidly declining. The number of minority-owned

broadcast stations has historically been concerning, but

current minority ownership levels are especially low. A

recent study from the FCC shows that people from racial

minority groups own only four percent of commercial

broadcast stations. See Media Bureau and Office of

Economics and Analytics, Fifth Report on Ownership of

Broadcast Stations, FCC (Sept. 2021), https://docs.fcc.gov/

public/attachments/DA-21-1101A1.pdf. The report also

shows that two percent of U.S. noncommercial broadcast

stations are owned by people who identify as Black and

three percent of those stations are owned by people who

identify as Hispanic/Latino. See id. Nationally, people

who identify as Black own about one percent of low power

commercial televisions stations—television stations

meant to deliver programming tailored to localized

interests—while people who identify as Hispanic/Latino

own 13.8 percent of low power television stations. See

Media Bureau and Office of Economics and Analytics,

Fifth Report on Ownership of Broadcast Stations, FCC

(Sept. 2021), https://docs.fcc.gov/public/attachments/DA21-1101A1.pdf; Robin Young and Samantha Raphelson,

Diversifying The Radio Dial: Black Station Owners

Demand Action, WBUR (July 22, 2020), https://www.

wbur.org/hereandnow/2020/07/22/black-owned-radiostations. In an August 2021 letter to members of Congress,

FCC Chairwoman Jessica Rosenworcel agreed that the

23

state of minority broadcast ownership is dire, asserting

that the “number of broadcast stations owned by women

and people of color is far too low” and noting that “lack

of diversity in ownership has consequences.” Letter from

Jessica Rosenworcel, Chairwoman, FCC, to the Honorable

Jamaal Bowman, et al., U.S. House of Representatives

(Aug. 31, 2021), https://docs.fcc.gov/public/attachments/

DOC-375654A2.pdf.

Although people of color often appear in front of the

camera in television broadcasts or at the microphone in

radio broadcasts, they are seldom found in positions of

authority behind the scenes. Minority exclusion from

the airwaves has had, and continues to have, profound

consequences, namely that when diverse ownership and

management decrease, diverse programming content also

decreases. See, e.g., TV 9 Inc. v. FCC, 495 F.2d 929, 938

(D.C. Cir. 1973) (“[I]t is upon ownership that public policy

places primary reliance with respect to diversification of

content, and that historically has proved to be significantly

influential with respect to editorial comment and the

presentation of news.”).

Hav ing diverse ow ners and super v isor y and

managerial staff of broadcast stations, radio stations, and

television networks helps promote diverse programming

and “the widest possible dissemination” of diverse

viewpoints. See Turner Broad. Sys., Inc., 512 U.S. at 663.

Community groups could be more effective if the people

making editorial decisions in local television and radio

stations were more representative of the communities

the stations serve.

24

Because broadcasters provide the voice and conscience

of their respective communities and tell the American

story, “it is imperative that they represent all of America.”

Review of the Commission’s Broadcast and Cable Equal

Employment Opportunity Rules and Policies, Further

Notice of Proposed Rulemaking, 36 FCC Rcd 12055 (2021)

(statement of Commissioner Geoffrey Starks). Diverse

individuals therefore must be represented in “who decides

what is newsworthy; and who decides what talent is hired

and promoted.” Id.

Diverse owners and managerial staff at broadcast

stations can help ensure that the needs of their audiences

are adequately addressed. Diverse communities demand

diverse content that is meaningful and representative

of their cultures and experiences. See Stacie de Armas,

A Relevancy Revolution: The Importance of Spanish

Language Content, Nielsen (Feb. 24, 2022), https://

www.nielsen.com/us/en/insights/article/2022/a-relevancyrevolution-the-importance-of-spanish-language-content/.

To illustrate, nearly 60 percent of the bilingual and

Spanish-dominant Latinx population find it important

to have access to “content in Spanish and/or Hispanictargeted English-language content.” Adam Jacobson,

Diverse Content: A Driver of TV Antenna Use, Radio +

Television Business Report (Feb. 15, 2022), https://www.

rbr.com/diverse-content-a-driver-of-tv-antenna-use/; see

also 2014 Quadrennial Review Report and Order ¶ 247

(“Hispanic viewers favor the major Spanish-language

networks . . .; watch local, Spanish-language news at

higher levels than English-language news; and watch

more telenovelas than other program types.”); id ¶ 248

(“Spanish-language programs are nearly 30 times more

likely to appear on Hispanic-owned stations than English-

25

language programs, while local programs are nearly six

times more likely than non-local.”).

Diverse content can also be necessary in the event of

an emergency situation. For example, diverse communities

can be better protected by ensuring that lifesaving

information is communicated over radio and television

broadcasts in a community’s widely-spoken language when

a natural disaster strikes or a weather event requires

evacuation of an area. Lack of multilingual emergency

information should not be an obstacle when confronting

matters of life or death. Ultimately, remedial steps must

be taken to improve minority broadcast ownership, not

stifle it.

To promote a diverse communications marketplace,

there are no available or workable race-neutral alternatives.

Indeed, diverse voices are needed to communicate

diverse perspectives. As FCC Commissioner Geoffrey

Starks explained, the need for “representation [in mass

media] is not abstract or theoretical—how we receive

and process information is deeply intertwined with

what we see and hear, and who delivers the message.”

Review of the Commission’s Broadcast and Cable Equal

Employment Opportunity Rules and Policies, Further

Notice of Proposed Rulemaking, 36 FCC Rcd 12055 (2021)

(statement of Commissioner Geoffrey Starks). Although

there is value in having a community of people with similar

backgrounds, race is not an entirely shared experience

among all members of a race, and no racial or ethnic group

is a monolith.

26

CONCLUSION

For the foregoing reasons, Amici Curiae respectfully

request that this Court affirm the decisions below.

Respectfully submitted,

Tara M. Corvo

Christen B’anca Glenn

Mintz, Levin, Cohn, Ferris,

Glovsky and Popeo, P.C.

555 12th Street, NW,

Suite 1100

Washington, D.C. 20004

(202) 434-7300

Emily K anstroom Musgrave

Counsel of Record

Susan Finegan

A ndrew Nathanson

Courtney Herndon

Mintz, Levin, Cohn, Ferris,

Glovsky and Popeo, P.C.

One Financial Center

Boston, MA 02111

(617) 542-6000

ekmusgrave@mintz.com

Counsel for Amici Curiae

Dated: August 1, 2022