Opposition Brief — West Michigan Broadcasting Co. v. Federal Communications Commission

(9) [Office - Supreme Court, US. |

FILED

FEB @ (988

NDER L. STEVAS.

In the Supreme Court of the Hnifes Sistem

-Octoser TERM, 1984

No. 84-700

WEST MICHIGAN BROADCASTING COMPANY, PETITIONER

Vv.

FEDERAL COMMUNICATIONS COMMISSION, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UMITED STATES COURT OF APPEALS FOR

THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE FEDERAL COMMUNICATIONS

COMMISSION IN OPPOSITION

Rex E. Lge

Solicitor General

Department of Justice

Washington, D.C. 20530

(202) 633-2217

JaCK D. SMITH

General Counsel

DANIEL M. ARMSTRONG

Associate General Counsel

DAVID SILBERMAN

Attorney —

Federal Communications Commission

Washington, D.C. 20554

i3PP |

QUESTION PRESENTED

Whether the Federal Communications Commission

properly awarded the license for a new radio station to

another fully qualified applicant, rather than petitioner,

based on various factors including the race of the successful

applicant.

(I)

TABLE OF CONTENTS

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TABLE OF AUTHORITIES

Cases:

Cleveland Television Corp. v. FCC,

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Fullilove v. Klutznick, 448 U.S. 448 ........... 5

HLD&M Communications, 93 F.C.C. 2d

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Policy Statement on Comparative Broadcast

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Radio Gaithersburg, Inc., 72 F.C.C. 2d

820, review denied, FCC 80-734, (Dec. 4,

1980), aff'd sub nom. Radio Gaithersburg

ED acccawasadcsscccvessecs 3

TV 9, Inc. v. FCC, 495 F.2d 929,

ee eee 3

University of California Regents v.

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(Ii)

In the Supreme Court of the Hnited States

OCTOBER TERM, 1984

No. 84-700

WEsT MICHIGAN BROADCASTING COMPANY, PETITIONER

V.

FEDERAL COMMUNICATIONS COMMISSION, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE DISTRICT OF COLUMBIA CIRCUIT

~

BRIEF FOR THE FEDERAL COMMUNICATIONS

COMMISSION IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 35a-64a) is

reported at 735 F.2d 601. The decision of the Federal

Communications Commission (Pet. App. 1la-34a) is re-

ported at 91 F.C.C. 2d 1260.

JURISDICTION

The judgment of the court of appeals was entered on May

25, 1984. A petition for rehearing and suggestion for rehear-

ing en banc were denied on August 2, 1984 (Pet. App.

66a-68a). The petition for a writ of certiorari was filed on

October 31, 1984. The jurisdiction of this Court is invoked

under 28 U.S.C. 1254(1).

STATEMENT

1. Petitiorier West Michigan Broadcasting Company

(West Michigan) and Waters Broadcasting Corporation

(Waters) filed mutually exclusive applications for authority

(1)

2

to construct and operate a new FM broadcast station in

Hart, Michigan. Petitioner is owned by two men and one

woman, all of whom are residents of Hart and proposed to

participate full-time in the operation of their station.

Waters is wholly owned by a black woman who lived about

30 miles from Hart but within the proposed service area of

the station. She proposed to move to Hart and to partici-

pate full-time in the management of the station. Pet. App.

2a, 37a.

When the FCC compares mutually exclusive applica-

tions for new broadcast facilities, it looks at two principal

factors: diversification of control of the media of mass

communications and the best practicable service to the

public. See Policy Statement on Comparative Broadcast

Hearings (1965 Policy Statement), 1 F.C.C.2d 393 (1965).

See also Cleveland Television Corp. v. FCC, 732 F.2d 962,

972 (D.C. Cir. 1984). Neither applicant in this case owns

any other media interests (Pet. App. 8a-9a); therefore, the

comparative choice between them depended on which

applicant would provide the best practicable service. Partic-

ipation in station management by owners, which is com-

monly referred to as the “integration” of ownership and

management, is a factor of “substantial importance” in

determining which applicant is superior under the best

practicable service objective. 1965 Policy Statement, |

F.C.C. 2d at 395.! This factor has a “quantitative” aspect,

i.e., the degree to which the owner or owners will be

involved in the station’s management. It also has “qualita-

tive” aspects. Among the attributes viewed by the Commis-

sion as qualitatively enhancing an integration proposal are

‘Other factors, such as proposed program service, past broadcast

record, efficient use of the frequency and character, may also play a role

in determining which applicant will provide the best practicable service.

1965 Policy Statement, | F.C.C. 2d at 397-399. These factors were not

involved in this case.

3

the local residence, civic participation, past broadcast expe-

rience, race, and gender’ of the owner. See TV 9, Inc. v.

FCC, 495 F.2d 929, 941 & n.2(D.C. Cir. 1973), cert. denied,

419 U.S. 986 (1974); W PIX, Inc., 68 F.C.C. 2d 381, 411-412

(1978); 1965 Policy Statement, 1 F.C.C. 2d at 395-396.

2. The awarding of the license in this case turned on the

precise weight to be given the various qualitative factors.

The administrative law judge awarded the license to

Waters, finding that Mrs. Waters’ proposal to integrate

ownership into management was superior to petitioner’s

and that she had a superior knowledge of Hart. The admi-

nistrative law judge also gave her a preference on grounds of

gender and race. Waters Broadcasting Corp., 88 F.C.C. 2d

1213 (A.L.J. 1981).

The Review Board reversed. The Board concluded that

Mrs. Waters was entitled to “only slight enhancement”

based upon her residence and participation in the affairs of

a community 30 miles from Hart. The Board then held that,

other factors being equal, local residence should take

precedence over minority ownership. Waters Broadcasting

Corp., 88 F.C.C. 2d 1204 (Rev. Bd. 1981).

A divided Commission reversed the Review Board (Pet.

App. la-lla). The Commission awarded Waters “moder-

ate” as opposed to “slight” enhancement for her residence

and civic activities (id. at 4a-6a). With this modification, the

balance tipped in Waters’ favor. As the Commission

explained (id. at 10a):

?The Commission has held that female ownership qualitatively

enhances an integration proposal but is entitled to less weight than

minority ownership. See Radio Gaithersburg, Inc., 72 F.C.C, 2d 820,

829 (Rev. Bd. 1979), review denied, FCC 80-734 (Dec. 4, 1980), aff'd per

curiam without opinion sub nom. Radio Gaithersburg v. FCC, 672

F.2d 896 (D.C. Cir. 1981).

4

West Michigan is entitled to substantial enhance-

ment for local residence and past participation in civic

activities in the proposed community of license, but its

substantial enhancement is closely followed by Waters’

moderate enhancement for Mrs. Waters’ residence and

past participation in civic activities in the proposed

service area. Waters is also entitled to a substantial

enhancement for its 100% minority and female owner-

ship integrated with full-time management, while West

Michigan’s enhancement for 24% temale ownership

integrated with full-time management is substantially

less. Weighing all of the relevant comparative factors,

we find that Waters’ substantial enhancement for

minority and female ownership, together with the

moderate enhancement credit awarded for Mrs. Waters’

residence and civic activities, mandate the conclusion

that the grant of Waters’ application will better serve

the public interest, convenience, and necessity.

The Commission disagreed with petitioner’s argument that

the Review Board had “awarded too much credit to Waters

for minority ownership” (Pet. App. at 6a (emphasis added)).

Rejecting the argument that minority ownership is relevant

only if there is a substantial minority in the proposed service

area, the majority relied instead (id. at 8a) on “the continu-

ing underrepresentation of minorities in broadcast owner-

ship” and the fact that “minority controlled stations are

likely to serve the important function of providing a differ-

ent insight to the general public about minority problems

and minority views on matters of concern to the entire

community and the nation.”

Chairman Fowler and Commissioner Sharp dissented,

arguing on nonconstitutional grounds that it was necessary

“to weight the degree of enhancement commensurate with

the extent to which minorities are represented in the com-

munity of license“ (Pet. App. 16a) (Fowler, C., dissenting

5

(emphasis in original)); see also id. at 33a-34a (Sharp, C.,

dissenting).

3. The court of appeals affirmed. The court first upheld

the Commission’s decision to award Waters “moderate,” as

opposed to “slight,” enhancement for local residence and

civic participation (Pet. App. 47a). The court then held that

the preference awarded to Waters based on race was con-

sistent with the Commission’s statutory authority (id. at

47a-58a) and with equal protection principles, as construed

in Fullilove v. Klutznick, 448 U.S. 448 (1980), and Univer-

sity of California Regents v. Bakke, 438 U.S. 265 (1978)

(Pet. App. 58a-64a).

Rehearing en banc was denied with no dissents.

ARGUMENT

The Federal Communications Commission granted the

license to operate a new FM radio station in rural Michigan

to another fully qualified applicant, rather than petitioner,

based on a weighing of numerous factors, including local

residence and civic participation, gender, and race. Peti-

tioner asks this Court to review this fact-bound decision

and to address the important and sensitive questions of

whether and if so in what way the race of an applicant may

be considered in awarding a broadcast license. Contrary to

petitioner’s argument, however, it is by no means clear from

the Commission’s opinion that race was the dispositive

factor in its decision. Moreover, petitioner’s right to prevail,

even under its own theory, is based upon disputed facts, and

the broad constitutional argument advanced by petitioner

is difficult, if not impossible, to apply to the facts of this

case, which involves a community with a single radio sta-

tion. For all of these reasons, we believe that this case

provides a poor vehicle for addressing the broad legal issues

raised by petitioner and that review should accordingly be

denied.

6

While petitioner asserts that this case is “remarkably

pristine in its constitutional setting” (Pet. 4), it is in fact

impossible to determine from the Commission’s opinion

what effect, race had on the decision to award the license to

Waters, rather than petitioner. For example, gender, not

race, could have been a decisive factor. Waters received

greater credit than petitioner because its sole owner was

female, whereas only one of petitioner’s three owners was

female. This preference alone, without taking race into

account, might have been sufficient to outweigh petitioner’s

advantage with respect to local ownership and civic partici-

pation, where petitioner received “substantial credit” as

opposed to Waters’ “moderate credit.”

While arguing that race was given “too much” weight in

this case (Pet. App. 6a), petitioner has never contested the

weight assigned by the Commission to gender (see id. at 38a

n.1). Thus, it is by no means clear that Mrs. Waters’ race is

essential to a decision in her favor.’

The case is additionally unsuitable for review because

petitioner relies on a constitutional argument that may be

inapplicable, and is in any event extraordinarily difficult to

apply, to the peculiar facts of this case. Petitioner has never

argued that the Commission is barred from considering

3The Commission does, however, believe that its policy of granting

qualitative enhancement in comparative hearings based on minority

participation and ownership is consistent with the governing statute

and with the views of a majority of the Court in University of California

Regents v. Bakke, 438 U.S. 265, 269-324 (1978) (Powell, J.); id. at

324-379 (Brennan, White, Marshall and Blackmun, J.J.). The Commis-

sion has not reserved any broadcast frequencies for minority owners or

established any form of quotas, either overall or within a particular

geographic area served by a number of licensees. See Pet. App. 58a-62a;

HLD&M Communications, 93 F.C.C. 2d 143 (Rev. Bd. 1983) (minority-

owned applicant lost in comparative hearing based on totality of

factors).

7

race in comparative hearings (Pet. 7). Instead, petitioner

contends (ibid.) that race may be considered only if there is

a substantial racial minority in the community of license.

Since the community of license in this case—the Town of

Hart—has few black residents, petitioner argues that

Waters was entitled to no preference for minority owner-

ship. There is, however, a substantial black population

within the station’s proposed service area beyond the Town

of Hart (Waters Broadcasting Corp., 88 F.C.C. 2d at 1216;

see Pet. App. 6a, 49a), and it is difficult to see why a

distinction between the racial composition of the commun-

ity of license and that of the station’s broader service area

would be of constitutional significance.

In addition, there are inherent difficulties in applying

petitioner’s constitutional test in a case such as this involv-

ing a one-station town. Petitioner appears to argue (see Pet.

9) that minority owners may be given preference in award-

ing licenses only if the percentage of minority population in

the area exceeds the percentage of minority ownership of

stations. Except in the very largest cities, there are not

enough stations to permit the implementation of such a

finely tuned statistical standard. Jn the case of a multi-racial

community with only one station, application of petition-

er’s test would be impossible, except in the unlikely event of

an applicant with multi-racial ownership corresponding to

the community’s population mix. Petitioner’s submission

leaves unanswered the question of how large the minority

population of a single-station community would have to be

before the race of applicants could be taken into account.

Must it approach or exceed the national average? Or must it

be substantially higher than that to be considered in award-

ing the community’s only station?

8

The Commission’s discussion of the relevance of minority

ownership in this case responded to and was structured by

the particular constitutional argument that petitioner

raised. Accordingly, while serious constitutional questions

are implicated by the consideration of race in the awarding

of broadcast licenses, this is not an appropriate case for

examining those questions.

CONCLUSION

The petition for a writ of certiorari should be denied.

Rex E. LEE

Solicitor General

Jack D. SMITH

General Counsel

DANIEL M. ARMSTRONG

Associate General Counsel

DAVID SILBERMAN

Counsel

Federal Communications Commission

FEBRUARY 1985

DO)-1985-02