Petitioners Brief — Metro Broadcasting, Inc. v. FCC

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No. 89-453 JOSEPH

| Supreme Court, U.S,

iT’ EILED

» |

FEB +9 sap

F. SPANIOL, JR

a meetir st

IN THE eee

Supreme Court of the United States

OCTOBER TERM, 1989

METRO BROADCASTING, INC.,

Petitioner,

FEDERAL COMMUNICATIONS COMMISSION, et al.,

Respondents.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR PETITIONER

METRO BROADCASTING, INC.

JOHN H. MIDLEN, Jr.*

GREGORY H. GUILLOT

JOHN H. MIDLEN, JR.

CHARTERED

3238 Prospect Street, N.W.

Washington, D.C. 20007-3215

(202) 338-1500

Attorneys for Petitioner,

Metro Broadcasting, Inc.

* Counsel of Record

February, 1990

PRESS OF BYRON 8S. ADAMS, WASHINGTON, D.C. (202) 347-8203

QUESTIONS PRESENTED FOR REVIEW

1. Whether the Federal Communications Commission’s

policies of awarding substantial preferences in comparative

broadcast licensing proceedings to minority and female ap-

plicants, created in the absence of any findings of prior

discrimination and applied for the sole purpose of fostering

program diversity, violate the equal protection component

of the Due Process Clause of the Fifth Amendment to the

Constitution of the United States of America.

2. Whether Congress’ 1988, 1989 and 1990 appropria-

tions legislation, which closed down the Federal Commu-

nications Commission’s first comprehensive examination of

the factual, statutory and constitutional bases for its mi-

nority- and gender-based preference classification policies;

defunded any reexamination of, changes in, or appeal re-

garding the policies, and ordered the reinstatement and

maintenance of the race-, ethnic- and gender-based clas-

sifications, absent historical evidence of prior discrimina-

tion and for the sole purpose of fostering program

diversity, exceeded congressional authority under Section

5 of the Fourteenth Amendment and violated the equal

protection principle embodied in the Due Process Clause

of the Fifth Amendment to the Constitution of the United

States of America.

LIST OF PARTIES AND PARTIES’ STRUCTURES

The parties in Winter Park Communications, Inc. v.

Federal Communications Commission, 873 F.2d 347 (D.C.

Cir. 1989) (consolidated case nos. 85-1755 and 85-1756)

were appellants Metro Broadcasting, Inc. (Metro) and Win-

ter Park _Communications, Inc. (Winter Park), appellee

Federal Communications Commission (FCC or Commis-

sion), intervenors Rainbow Broadcasting Company (Rain-

bow), City of Winter Park and Winter Park Chamber of

Commerce, and amicus curiae United States of America.

Winter Park, the Chamber and the City have no further

interest in this case. The parties’ structures are set forth

in Metro’s Petition for Certiorari (Petition), at p. ii, which

is incorporated herein by reference pursuant to Rule 29.1

of this Court.

iil

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED FOR REVIEW ............... i

LIST OF PARTIES AND PARTIES’ STRUCTURES . iii

I NEI Senccctccccccececcccscccoscecececceses a

cs ceuunueuscose 1

ESAS 2

CONSTITUTIONAL AND STATUTORY PROVISIONS .. 3

STATEMENT OF THE CASE ..............ccccecessssssceccess 3

A. The Evolution of The Commission’s Compar-

ative Process and the Development of Mi-

nority and Female Preferences Therein ..... 4

1. The 1965 Policy Statement .........0...0000-0. 5

2. Judicial Directives: Tne Advent of Minor-

ity Preferences in Comparative Broadcast

Ea 6

3. The Commission’s Adoption of Gender-

Based Preference Classifications ............ 9

4. The Mechanics of Modern Comparative

ESE SE 10

a ccasunsvccce 10

b. Practicable Service: Quantitative Inte-

gration of Ownership Into Management

Silnpdisn easuaNnadnnnabeRieeueseesdeseesecensenereececceces 11

c. Best Practicable Service: Qualitative

Integration Enhancement Factors ...... 13

d. Other Comparative Factors ................ 14

5. Application of the Minority and Female

Preferences in the Instant Case ............. 15

B. The Commission’s Reexamination of Its Pref-

erences in Steele and Remand of the Instant

Case From the Lower Court .......ccccccccc00.... 16

C. Co ional Entrenchment of the Commis-

sion’s Preference Policies and the Di ition

of This Case by the Court of Appeals ....... 18

iv | Vv

; II. Congress’ 1988, 1989 And 1990 Appropria-

SUMMARY OF THE ARGUMENT. ..............:cccce00ee00s 19 tions Aste Rucaniad Cananensionsd Rathacie

ATIGAGEEEIITE | seithisansinindbibecsuniveienessessersepnscstsavennensanes 21 Under ~~ : nu = yee ye ao :

I. The FCC’s Race-, Ethnic-, and Gender-Based Principles ene a ae be

Preference Policies Violate The Equal Pro- Clause Of The Fifth Amendment To The

tection Component Of The Due Process CREE. sesscxnvesssnisnseniocenenpmetineneinelidhiucenesen 48

Clause Of The Constitution Of The United :

Senter ee 21 CORRITIINIT aitisdbhdsincnijecieiceeittnssiasesiciicenieicamtaamiciians 50

A. Strict Scrutiny Should Be Adopted As

The Standard Of Equa! Protection Re-

view Appropriate For Race-, Ethnic-, And

Gender-Based Classifications Which Are

Imposed And Administered By The Ju-

diciary Or Federal Administrative Agen-

GRU ccevvcidtenpissinraainiaa iat le ins n 28

B. The Commission’s Minority And Female

Preference Policies Cannot Survive Strict

Scrutiny, Or Any Less Stringent Stand-

ard Of Equal Protection Review ........... 35

1. The FCC’s Race-, Ethnic-, and Gender-

Based Preference Classifications Do

Not Further A Compelling Or Impor-

tant Governmental Interest ............... 36

a. Program Diversity Is Not A Com-

lling Or Important Governmental

nterest So As To Justify The Com-

~ mission’s Preference Classifications

coccscosemaptiunecudguneiuneisasiiaiidemmssseddinsorsce 37

b. The Bakke Diversity Rationale

Should Not Be Extended Beyond

The Academic Context .....00.......... 39

2. The Commission’s Preference Policies

Are Not Sufficiently Tailored To The

Accomplishment Of Diversity

To Pass Constitutional Muster .......... 41

3. Fullilove Does Not Allay The Neces-

sity Of Reaching Constitutional Deter-

mination On This Issue .0..........cccccee. 44

TABLE OF AUTHORITIES

Cases Page

Action for Children’s Television v. FCC, 821 F.2d

eS OR ER 39

Anderson v. Martin, 375 U.S. 399 IIIT sitdesidetens 26

Ashbacker Radio Corp. v. FCC, 326 U.S. 327

RCE aA am PRe Ree Oa 3,4

Bolling v. Sharpe, 347 U.S. 497 (1954) voccccccccsses.. 25

Buckley v. Valeo, 424 U.S. 1 a a 25,27

Califano v. Goldfarb, 480 U.S. 199 Sa 30,50

Califano v. Webster, 430 U.S. 313 a 29,33

Casteneda v. Partida, 430 U.S. 482 ae 27

City of Richmond v. J. A. Croson Co., 109 S.Ct.

Ne I sheviinicnneccott MM niaiactininienbabieuniac) aie te, passim

Cleburne v. Cleburne Living Center, 473 U.S. 432

SEC «OO passim

Committee for Community Access v. FCC, 737 F.2d

RN WE CE cistern 12

Craig v. Boren, 429 U.S. 190 ne 27

Cruz v. Hauck, 404 U.S. 59 (1971) coccccccccccoceees-.... 25

Davis v. Passman, 442 U.S. 228 (1979) ............... 25

FCC v. National Citizens Committee for Broad-

casting, 436 U.S. 697 (1978) oo..cccececccccccecess.... 10

Frontiero v. Richardson, 411 U.S. 677 (1973) ..... 26,27,32

Fullilove v. Klutznick, 448 U.S. 448 (1980) ............ passim

Garrett v. FCC, 513 F.2d 1056 (D.C. Cir.

a en: ae 7,8,19,20,38

Hampton v. Mow Sun Wong, 426 U.S. 88 (1976) . 25

Hazelwood School District v. United States, 433 U.S.

chy, RE EEES REEDS te laa 47

Hernandez v. Texas, 347 U.S. 475 SD 26

Hirabayashi v. United States, 320 U.S. 81

ELE LANES 26

Kahn v. Shevin, 416 U.S. 351 Sa 32,33

Kirchberg v. Feenstra, 450 U.S. 455 RS 32,42

Table of Authorities Continued

Page

Marbury v. Madison, 2 L.Ed 60 (1803) ................. 50

Mayor v. Educational Equality League, 415 U.S. »

FOP vcnitepiemnactdipisdtimpsnisiateiiaaiddabaiiiilads blithe ies

Michael M. v. Superior Court of Sonoma County,

450 U.S. 464 (1981) ..........c.cccccccccccscsssecceeessees 27,32

Mississippi University for Women v. Hogan, 458

US. 718 EE ES Ae ea passim

Office of Communications of the United Church of

Christ v. FCC, 707 F. 2d 1413 (D.C. Cir.

TEED sinnsorlicmaidadisisncedibiigelidibinsaniasiidiiliedsiizees 39

Palmore v. Sidoti, 466 U.S. 429 (1984) .......00........ 26

Parham v. Hughes, 441 U.S. 347 (1979) 0.0.0.0... 33

Reed v. Reed, 404 U.S. 71 (1971) wo.cccccecceccceceeeeeeees 27

Regents of the University of California v. Bakke,

438 us tI UIE cscictivtatsiilansndsscbddilbrtcescesooces passim

Richardson v. Belcher, 404 U.S. 78 (1971) ............ 30

Rinaldi v. Yeager, 384 U.S. 305 (1966) ................. 33

Rostker v. Goldberg, 453° U.S. 57 (1981) ................ 25

San Francisco Arts & Athletics, Inc. v. United

States Olympic Committee, 483 U.S. 522

CRITI TT sinsedesicaneetettlliamiimeentnitatiatinnciatlitinls atbateniiiiaeascee 27

Schlesinger v. Ballard, 419 U.S. 498 (1975) .......... 29,33

Schneider v. Rusk, 377 U.S. 163 (1964) .......0....... 25

SEC v. Chenery Corp., 318 U.S. 80 (1948) ........... 45

Shelley v. Kraemer, 334 U.S. 1 (1948) oo... 30

Shurberg Broadcasting of Hartford, Inc. v. FCC,

876 F.2d 901 (D.C. Cir. 1989) oe 8,17

Stanton v. Stanton, 421 U.S. 7 (1975) wo... 34

Steele v. FCC, 770 F.2d 1192 (D.C. Cir. 1985) ...... passim

Strauder v. West Virginia, 100 U.S. 303 (1880) ... 26

TV 9, Inc. v. FCC, 495 F.2d 929 (D.C. Cir. 1973),

cert. denied, 419 U.S. 986 (1974) ......... cece passim

TVA v. Hill, 487 U.S. 153 (1978)... eeeeeeee 50

Truax v. Raich, 239 U.S. 33 (1915) oe. 26

Vili

Table of Authorities Continued

Page

United American Telecasters, Inc. v. FCC, 801 F.

2d 1436 (D.C. Cir 1986) ooo..eeeecceccesceccees....., 22

United States v. Paradise. 420 U.S. 149 (1987) .... 42

Vance v. Bradley, 440 U.S. 93 ES 25

Webster v. Reproductive Health Services, 109 S.

UG eee ie “4 35

Weinberger v. Wiesenfeld, 420 U.S. 636 (1975) ...... passim

West Michigan Broadcasting Co. v. FCC, 735 F.2d

601 (D.C. Cir. 1984), cert. denied, 470 U.S.

Ue COUN eacteenctitiiidininenillisieedteeeceeaieczs. passim

Williams v. Rhodes, 393 U.S. 23 a 50

Winter Park Communications, Inc. v. FCC, 873

F.2d 347 (D.C. Cir. ae ee passim

Wygant v. Jackson Board of Education, 476 U.S.

ee GE rervcnccseabilsiaetdiiitieinciees passim

Yick Wo v. Hopkins, 118 U.S. 356 IN ecateditiet. 26

Younger v. Harris, 401 U.S. 37 a 50

Administrative Decisions

Absolutely Great Radio, Inc., 55 Rad. . 2d (P&F

15 (1983) 101 FCC 2d 638 985) = ail tim 12

Advanced Broadcast Technologi , Inc., 4 FCC

6821 (ALJ 1989) ......... seamen nethinensttitiniininttinns ™ ‘ 24

Amendment of the Commission’s Rules to Allow the

Selection from A Competing Applicants for

New AM, FM and Television By Random Se-

lection, 4 FCC Red 2246 aa passim

Oe Ee 5 es ke

o~ 2 ose

Table of Authorities Continued

Page

Beaux “t+ Broadcasters Ltd. Partnership, 4 FCC

Red 581 (ALJ 1989) .0.......cccccccscssscessseeeeeeceeeees 24

Berea Broadcasting Co., Inc., 4 FCC Red 2341 (ALJ

GEIEY) <eovstencesssessnscssovsconsesesatelibvainvenssessutaipeccseseni 24

Bison City TV 49 Ltd Partnership, 91 FCC 2d 26

2 ee ae 43

Boedker, Rebecca L., 4 FCC Red 8328 (ALJ

UNDUE vatstndiniioenscsecinrvaatnaesdatiiitanaiadaslicittinsneinseees 25

Bogner Newton Corp., 2 FCC Red 4792 (ALJ

RRR 5 aR AR Sa 23

Bott, II, Richard P., 3 FCC Red 7094 (ALJ

EE a ae eee 24

Carrigan, Debra D., 100 FCC 2d 741 (ALJ

SEIT tititienovswnsininevcneieliananiisiilbaiiliiinabidainiessieiiareanee 22

Carrigan, Debra D., 100 FCC 2d 721 (Rev. Bd.

1985), aff'd per 7 sub nom., Bernstein/

Rein Advertising, Inc. v. FCC, 830 F.2d 1188

GE cititinintciiciicae nae 23

Carta Corp., 4 FCC Red 7973 (ALJ 1989) ........ ei

Charisma Broadcasting Corp., 4 FCC Red 4018

ETE ce tS mS ee a 24

Chapman Radio and Television Co., 19 FCC 2d 157

(1969), reconsideration denied, 20 FCC 2d 624

RE A A SO 6

Clay, George Henry, 4 FCC Red 4564 (ALJ

nn 24

Coastal Broadcasting Partners, 4 FCC Red 2345

TT LSS TORE 24

Colonial Communications, Inc., 4 FCC Red 5969

| ED OE a a a 24

Commercial Radio Institute, 78 FCC 2d 1016 (Rev.

go IN en Eee 15

Commercial TV Stations, 98 FCC 2d 1076 (1984),

reconsideration denied, 104 FCC 2d 357 (1986),

aff'd, Action for Children’s Television v. FCC,

821 F.2d 741 (D.C. Cir. 1987) ooo eceeeeee. 39

Table of Authorities Continued

Community Broadcasting Co., Inc., 4 FCC Red 1986

ENOL SUIT -ccilinebaeiipictinteceemicemenciiioniennesmnatinensennsen

a Ltd., 4 FCC Red 1537 (ALJ

Cotton Broadcasting Co., 4 FCC Red 1781

UUTITEE dbhcsteltiibntmnsnnindiadintaiendiilidiniabsliidemcatdiets insegins

Cotton Broadcasting Co., 60 Rad. . 2d 92 (P&

et RS sans aiaiuiaineda a

Crook, Linda, 2 FCC Red 3511 (ALJ 1987) .........

Crook, Linda, 3 FCC Red 354 (1988) ............000.....

DLBS, Inc., 3 FCC Red 6710 (ALJ 1988) ............

Dalton Television Associates, Ltd., 2 FCC Red 2940

AR RII SEITE he

| III, William S., 3 FCC Red 4999 (ALJ

Daytona Broadcasting Company, Inc., 103 FCC 2d

931 (1986) ...... ~ ee i pistitniiiandianipiibeness

Deregulation of Radio, 84 FCC 2d 968, reconsider-

ation denied, 87 FCC 2d 797 (1981), aff'd in

part and rev'd in part, Office of Communica-

tion of the United Church of Christ v. FCC,

707 F.2d 1413 (D.C. Cir. 1983) ..............cc00000.

Eicher, Elaine, 3 FCC Red 812 (ALJ 1988) .........

~~ Corp., 2 FCC Red 4468 (ALJ

IEE SEITE stlldintines sapacetscninsabatetienniaieiinnimntaseeesennee

Fairness Doctrine, 102 FCC 2d 143 (1985) ...........

Faith Center, Inc., 3 FCC Red 868 (1988) ............

FM Broadcast Assignments, 101 FCC 2d 638

Recetas ese

— — Inc., 3 FCC Red 6796 (ALJ

ay Media, Inc., 70 FCC 2d 143 (Rev. Bd.

11,12

Table of Authorities Continued

Gali memati Inc., 2 FCC Red 6967 (ALJ

BITTED cciitcsteacnavecntsnennescssonnstinsammsannsanaminmmtnnpmnness

Garcia, Amando, 2 FCC Red 4166 (ALJ 1987) ....

Gary, oo F., FCC 90D-1 (ALJ released Jan. 22,

BOBD) 2..cccecececercesececscecsccesscescescssvsnccsoeocoessoosscsses

Genese emnenemamenee Inc., 2 FCC Red 7252 (ALJ

BIRIIOD “ ccceccsccnssssicinnnnsseintidnanecatntinnnennmenmenaaiattinite

CAGED) ..cccccreccccccccccccrescssessocssssosocccscsoocsoncsssoosoese

Global Information Technologies, Inc., 4 FCC Red

5445 (ALT 1969) ......cccccccrcccccroscocssesesseseesesecesees

Henry, Catherine Juanita, 3 FCC Red 1492 (ALJ

FIED cncccccccccccccscccccscesccccosscoccsssocnscososodsossessosecacs

High Sierra Broadcasting, Inc., 96 FCC 2d 423

Cae. TRE. BOGE) .ncecccccecccccccccccccecscccccsecsncessonccess

Hispanic Keys Broadcasting Corp., 2 FCC Red 6255

A yxy

Horne Industries, Inc., 94 FCC 2d 815 (Rev. Bd.

1983), modified, 98 FCC 2d 601 (1984) ..........

Independent Masters, Ltd, 104 FCC 2d 178 (Rev.

BE, TID ciccecceccccdsncssapeccinsecsoscctnienesadetidansessscees

Inlet Broadcasting Co., 4 FCC Red 6760 (ALJ

1989) ....... Coscodensecusinenennsnsitenntaanmesseniedninaiendseinines

Iselin, John Jay, 4 FCC Red 4622 (ALJ 1989) ....

J.T. Parker Broadcasting Corp., 4 FCC Red 5729

CRED WTI sccceseccccccccccosecenesesssesonsensnntensnnesensncees

JAM Communications, Inc., 3 FCC Red 6285 (ALJ

BOD cece cccscccscccccccccorcccccccccsscconcsees sssscessassosssoosces

Key gaat Corp., 3 FCC Red 6587 (ALJ

_ a

Klein, Jr., Alexander, S., 69 FCC 2d 2134 (Rev.

|) ae

—, Renee Marie, 4 FCC Red 2848 (ALJ

WGGBD) .nccccccccccccccccccceccoccsesccssccovessscsscooscssooossoossoes

La —_— Broadcasting Co., 6 FCC 2d 65 (Rev. Bd.

a ee

15,23

xii

Table of Authorities Continued

Page

Levin, Alan K., 96 FCC 2d 710 (Rev. Bd. 1984) . 15

Magdalene Gunden Partnership, 2 FCC Red 1223

SUE TIIIED dntrehinnininanienrcnsunicentpenieiaerenantennenseinan 23

Marlin yey PP of Central Florida, Inc., 3 FCC

Red 4699 ( ED sisiteppannineieesigiainiemimenreses 23

Merrimack Vi Broadcasting, Inc., 92 FCC 2d

SIE SITE: ciirictrecncacsentnensedeneacnenemmnennes 11,12

Metro Broadcasting, Inc., 96 FCC 2d 1073 (ALJ

UITEE Uchiietensctidiletnicdicdipsibiinnsiciiiniidciiitaiidmmmnaiiabiittmmesnees 4

Metro ee og Inc., 99 FCC 2d 688 (Rev. Bad.

1984), affd, Winter Park Communications, Inc.

v. Federal Communications Commission, 873

gf fe Eee passim

Metro Broadcasting, Inc., 3 FCC Red 866 (1988) . 17,19

Metro Broadcasting, Inc., 2 FCC Red 1474

SUITTEY apndisensnnsnctespnineapatnipesiidiniiinnitiaieieinenemesce 16

Mid-Florida Television Corp., 33 FCC 2d 1 (Rev.

Bd.), review denied, 37 FCC 2d 559 (1972),

rev'd, TV 9, Inc. v. FCC, 495 F.2d 929 (D.C.

Cir 1973), cert. denied, 419 U.S. 986 (1974) .. 6

Mid-Florida Television eg: 70 FCC 2d 281 [69

FCC 2d 607] (Rev. Bd 1. 1978), set aside on other

grounds, 87 FCC 2d 203 ES 9,20

Mid-Ohio/Ca ~ ae Communications Ltd. Partner-

ship, FCC 90D-2, slip op. (ALJ released Jan.

kA Re eon 25

Minority Ownership of Broadcast Facilities, 69 FCC

2d 4591 aa 43

Moore Broadcast Industries, 2 FCC Red 2754 (ALJ

iid rine, Ceiiieainieaneieateneenen 23

Muschel, Herbert, 33 FCC 37 (1962) AS EST ee 43

New Nasa Broadcasting Co., 88 FCC 2d 830

(Rev. Bd. 1982), reconsideration denied, 89

ID TIE cnnnitcnstnecnteintdeenecntntenstesnanense 34

Newton Television, Limited, 3 FCC Red 553 (Rev.

Bd. 1988), modified, 4 FCC Red 2561

STII ‘etdcisininddenibcnenmnacdndntebisameaenmensiatiundteiniageeens 10,11

Table of Authorities Continued

Nirvana Radio Broadcasting Corp., 3 FCC Red 6038

CE TIED tictetntcnnesscsrsreccessvensescmansocsensenmnemenee

Northampton Media Associates, 3 FCC Red 570

( SIT Uildcnsinitiesicspaniaineetemenabimninneeniiadbimenticesenns

Ocean Pines LPB Broadcast Corp., 4 FCC Red 7767

GERAD. SEE cline ecnsssnteniennibannditinnininnensinetmensese

Omaha TV 15, 4 FCC Red 730 (1989) ............0006

Pacific Television, Ltd., FCC 86D-43, slip op. (ALJ

released. July 26, 1986) ebtiidinacsaxatbliatiainateniincess

Pacific Television, Ltd., 2 FCC Red 1101 (Rev. Bd.

1987), review denied, 3 FCC Red 1700

GREED sdcccisscssessenterceremnesienepetinpenemibamendzins: ves

Bd. 1986) envscevennensesseonsneesensessesenmeqasonsesequosescooees

774989) snsepeveneesssesnsceneessssosseqonasounsnessenoniessoonesescooes

Phalen, Shawn, 4 FCC Red 5714 (ALJ 1989) .......

Piner, William M., 3 FCC Red 7101 (ALJ 1988).

Policy Statement on Coreparative Broadcast Hear-

ings, 1 FCC 2d 393 (1965) ..............ccssssssccceeees

Pontchartrain Broadcasting Co., Inc., 3 FCC Red

ii iinct ccencreiencennitemnpnitneamanniain

Port Huron Family Radio, Inc., 3 FCC Red 5562

CEE HE cettdeincatatepersnernceseemennnnnssgsevinienpediiion

Poughkeepsie Broadcasting Ltd. Partnership, 4 FCC

BE GD TEE BD cnccecsvescnccccsescesidesenineesensee

Progressive Communications, Inc., 3 FCC Red 386

NT” BEI uncensindicencnacnencnsndicatsesnrnnbinunbbmebicnaiaiens

5s “ieee Soemalasen ete ei rN

(eee et siete

Radio Jonesboro, Inc., 100 FCC 2d 941 (1985) .....

Ramon Rodriguez & Associates, 4 FCC Red 370

xiv

Table of Authorities Continued

Page

Rayne Broadcasting Co., Inc., 4 FCC Red 6552 (ALJ

PUTED -conenernscensenianntpraninenenemecineinennbindiinsiaeesteenses 24

Reexamination of the Commission’s Comparative Li-

censing, Distress Sales and Tax Pol-

wies Premted on Racial, Ethnic or

Classi ons, 1 FCC Red 1315 (1986), mod-

ified, 2 FCC Red 2377 (1987), closed, 3 FCC

I arth ciieincndidnlemiediimeiaiiaitiaialataieanns passim

Religious Broadcasting Network, 2 FCC Red 6561

a ii tatinintintertesnctinnnrncententiniciitadeieneenaces 23

Religious Broadcasting Network, 3 FCC Red 4085

RTE 12,33

Rem Malloy Broadcasting, 4 FCC Red 8423 (ALJ

ISIE) dneeeniriianitennnedinntinbiainniintinniginmetiuetsinesecs 25

Report, Order and Policy Statement Regarding

Character fications in Broadcast Licen-

sing, 102 FCC 2d 1179 (1986), reconsideration

denied, 1 FCC Red 421 (1986) ...........cccccceeee. 15

Richardson Broadcasting Group, 4 FCC Red 7989

SII HII cistiatiiiteniieeniciniindielintaidettenstinssastintinsnzeneee 11,24

Rockledge Radio, Ltd., 4 FCC Red 3465 (ALJ

TIED nssibciticnehsiciescactinecniinmniiaininedentedensecitenietarencences 24

Salinas Broadcasting, 4 FCC Red 2762 (ALJ

EEE Sidudelinubiinsensnisnnmannteinntieenmaeninenisemiioneiiasrcee: 24

Salter Broadcasting Co., 8 FCC 2d 1036 (Rev. Bd.

TESTED Siasitsisiilitinieinecnsictnsicnimantiamiinipnstimueiuscmnesgsazeneseees 43

Santee C Broadcasting Co. of Hilton Head, Inc.,

99 FCC 2d 781 (Rev. Bd. 1984) .......0 cc. 33

Sarasota-Charlotte Broadcasting Corp., 4 FCC Red

A 25

Scott & Davis Enterprises, Inc., 88 FCC 2d 1090

LE 12

Schwier, Priscilla L., 2 FCC Red 7153 (ALJ

Ey siailintillelheshieteinibheninndiasanienteienintatdasenshtennenassees 23

Sepulveda, James and Sharon Leon, 2 FCC Red

TL ETE 23

Table of Authorities Continued

Page

Shinn, Charles Ray, 2 FCC Red 2234 (ALJ

DTD ccntiennenseidesinivinpemmemniammnnntnpininbenecsceemene 23

Silver Springs Communications, FCC 90D-4 slip op.

(ALJ released Jan. 24, 1990) ............:cccceeeeeeees 25

62 Broadcasting, Inc., 3 FCC Red 4429 (ALJ

DEED cciiscuepiciennticctinecsinienctguiiinainainiadapentnnsee nen 23

Snake River Television, Inc., 26 FCC 2d 380 (Rev.

> POD cenencncmscsnciansnscscatsecininssnsuscsecdeenseimecesss 11

Sorenson, Ronald, 4 FCC Red 6961 (ALJ i989)... 24,34

St. Louis City Communications, Inc., 4 FCC Red

| ee 43

Steele, James U., 4 FCC Red 4700 (1989) ............. 17,44

Stevenson, IV, Adlai E., 4 FCC Red 7153 (ALJ

SEE Stherriceninneccndinessensnenntsinidonventnneenethiuntehntiinees 24

The Baltimore Radio Show, Inc., 3 FCC Red 6823

iia SID .ditintompenenpibepnccnisemannciphiininninsnete 24

Thompson Broadcasting of Battle Creek, Inc., 2 FCC

Red YS Ree 23

Tomko, Duane, 2 FCC Red 206 (ALJ 1987) ......... 23

Tulsa Broadcasting Group, 2 FCC Red 1149 (ALJ

SEITE scstniesittnabtapieceiansencnnietnttinimneniiataenen 23

FS eee 23

Uram, Irving A., 2 FCC Red 1710 (ALJ 1987) .... 23

Van Buren Community Service Broadcaster, Inc.,

87 FCC 2d 1018 (Rev. Bd. 1980) ................... 12

WCVQ, Inc., 4 FCC Red 8554 (ALJ 1989) ........... 24

WPIX, Inc., 68 FCC 2d 381 (1978) .............cccceeees 7,10,11

Washoe Shoshone Broadcasting, 2 FCC Red 5362

SAE IEE ctsipcncnsrasindintenenenetetersenctanideresasneeme 23

Waters Broadcasting Corp., 91 FCC 2d 1260

TINTED encinciseeiennscinduenectanncutincennninnesiignesiantimeneneseene passim

Weyburn Broadcasting Ltd. Partnership, 4 FCC Red

ff ff een 24

xvi

Table of Authorities Continued

Wodlinger, Mark L., 2 FCC Red 6027 (ALJ

| En

Zozaga, Julia S., 4 FCC Red 6271 (ALJ 1989) .... 24

Constitution

Constitution of the United States of America

Pam AReROEEE cence passim

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Communications Act of 1934, as amended, 47 U.S.C.

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Communications Amendments Act of 1982, Public

Law 97-259, 96 Stat. 1087, 13, 1982, 47

Sept.

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Continui a Act for Fiscal Year 1988

and Other Purposes, Public Law No. 100-

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Judiciary and Related Agencies Appropriations

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Table of Authorities Continued

Congressional Material

Statement of Mark S. Fowler, Chairman, Federal

joe Bseeed Commission, Before the Sub-

committee on Telecommunications, Consumer

Protection, and Finance of the House Commit

tee on Energy and Commerce (October 2,

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Miscellaneous Material

Public Notice, FCC 86-387 (Sept. 15, 1986) ..........

President’s State of the Union Address, 24

™ WEEKLY COMP. PRES. DOC. 87 (Jan. 25,

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IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1989

No. 89-453

METRO BROADCASTING, INC.,

Petitioner,

Vv.

FEDERAL COMMUNICATIONS COMMISSION, et al.,

Respondents.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR PETITIONER

METRO BROADCASTING, INC.

OPINIONS BELOW

The Opinion of the United States Court of Appeals for

the District of Columbia Circuit (court of appeals or lower

court), upholding the policies and enactments challenged

herein is reported at 873 F.2d 347 (D.C. Cir. 1989), and

reproduced at page la of the appendices to Metro Broad-

casting Inc.’s (Metro’s) petition for certiorari (Petition).

(Pet. App. la). The Decision of the Commission’s Review

' References to material contained in the Appendices attached to Met-

ro’s petition for certiorari herein shall be cited to the page at which

such material appears; i.e., Pet. App. la. References to material con-

tained in the Joint Appendix filed contemporaneously herewith shall be

cited to the page at which such material appears therein; i.e., J.A. 1.

Board (Pet. App. 64a) to award a new UHF television

station construction permit at Orlando, Florida to Rainbow

Broadcasting Company (Rainbow) and deny the competing

application of Metro? is published at 99 FCC 2d 688 (Rev.

Bd. 1985). The FCC’s Order (Pet. App. 60a) denying re-

view of the Review Board’s Decision is unpublished. The

Commission’s Memorandum Opinion and Order holding the

proceeding in abeyance following remand by the court of

appeals (Pet. App. 52a) is reported at 2 FCC Red 1474

(1987). The Commission’s subsequent Memorandum Opin-

ion and Order reactivating its affirmance of the Review

Board’s Decision following congressional directives in ap-

propriations legislation for fiscal year 1988 (Pet. App. 482)

is published at 3 FCC Red 866 (1988).

JURISDICTION

The Opinion (Pet. App. la) and Judgment (Pet. App.

94a) of the court of appeals were entered on April 21,

1989, as was an order withholding issuance of the mandate

pending any timely petition for rehearing and/or sugges-

tion for rehearing en banc. (Pet. App. 47a). Metro’s petition

for rehearing and suggestion for rehearing en banc was

denied on June 21, 1989. (Pet. App. 96a). Metro’s petition

for a writ of certiorari was filed on September 18, 1989,

and granted on January 8, 1990. (J.A. 5). The jurisdiction

of this Court rests upon 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY PROVISIONS

The pertinent provisions of the Constitution of the

United States of America are the Fifth Amendment thereto

(Pet. App. 100a) and Sections 1 and 5 of the Fourteenth

Material contained in the Suppletuental Joint Appendix filed with the

lower court shall be cited to the page at which such material appears

therein; i.e., S.J.A. 1. References to the statute reprinted in the Ap-

pendix hereto shall be cited to the page at which the relevant passage

appears therein; 1.e., App. 1.

* The application of Winter Park Communications, Inc. (Winter Park)

also was denied for reasons not here relevant.

A oe ny aay:

Amendment thereto. (Pet. App. 100a). The germane sec-

tions of the Communications Amendments Act of 1982,

Public Law 97-259, 96 Stat. 1087 (1982), codified at 47

U.S.C. §§ 30%iX3XA) - (4A) (1987), are reprinted ai Pet.

App. 102a. The relevant provisions of the Continuing Ap-

propriations Act for Fiscal Year 1988 and for Other Pur-

poses, Public Law No. 100-202, 101 Stat. 1329-31 (1987),

are reproduced at Pet. App. 10la. The applicable provi-

sions of the Departments of Commerce, Justice and State,

the Judiciary and Related Agencies Appropriations Act of

1989, Public Law 100-459, 102 Stat. 2216-17 (1988) are set

forth at Pet. App. 10la. The appropriate portions of the

Departments of Commerce, Justice, and State, the Judici-

ary and Related Agencies Appropriations Act of 1990, Pub-

lic Law 101-162, 103 Stat. 988 (1989), are attached hereto

as Appendix (App.) A.’

STATEMENT OF THE CASE

Metro, petitioner, filed an application for a construction

permit for a new television station on Channel 65 at Or-

lando, Florida, in 1982. Rainbow, respondent, filed its com-

peting application later that year, and the two mutually

exclusive applicants were pitted against one another in the

crucible of a comparative hearing pursuant to Section

309(e) of the Communications Act of 1934, as amended

(Communications Act or the Act).‘ Because Rainbow re-

ceived enhancement credits for its attributable 90% His-

panic and 5% female (included within the Hispanic

attribution) ownership composition, it ultimately prevailed

* The legislation was enacted following the filing of Metro’s petition

for certiorari and was not included therein. Nevertheless, the provisions

which continue to stifle any attempt by the Commission to reexamine

its race-ethnic- and gender-based preferences in comparative licensing

Pp i are relevant to the instant case and govern the position

taken by the FCC herein.

‘47 U.S.C. § 309(e) (1982); Ashbacker Radio Corp. v. Federal Com-

munications Commission, 326 U.S. 327, 333 (1945).

under the Commission’s race-, ethnic- and gender-based

preference scheme. (Pet. App. 6a, 50a, 61a, 87a and 88a).*

A. The Evolution of the Commission’s Comparative

Process and the Development of Minority and Fe-

male Preferences Therein

The Communications Act directs that, in awarding radio

and television licenses, the Commission determine whether

its grant of a particular application will serve the “‘public

convenience, interest and necessity.” 47 U.S.C. § 307(a).

See also 47 U.S.C. § 309(a). Pursuant to this mandate, each

applicant for authority to construct a new broadcast sta-

tion must meet certain basic qualifications* and, when mu-

tually exclusive applications are filed, a comparative

hearing must be held to determine which applicant is best

able to serve the public interest.’

The procedures governing the Commission’s comparative

hearing process appear in Sections 309 and 311 of the

Act. 47 U.S.C. §§ 309, 311. The Act, however, does not

specify what factors the FCC must take into account in

rendering its public interest determination. Prior to 1965,

competing applicants were free to introduce evidence on

any issue which they felt demonstrated their superior qual-

ifications to operate a broadcast station on the frequency

* Metro received a minority enhancement credit for the 19.8% inte-

grated ownership share of Elmer Neal Lincoln, a black male. Metro

Broadcasting, Inc., 96 FCC 2d 1073, 1088 (ALJ 1983) (S.J.A. 39); Metro

Broadcasting, Inc., 99 FCC 2d 688, 703 (Rev. Bd. 1984) (Pet. App.

87a). However, the Commission’s Review Board held that this was

insufficient to overcome the “substantial preference” to be awarded

“Rainbow for its minority and female ownership structure. 99 FCC 2d

at 703 (Pet. App. 87a).

* These include the submission of facts regarding the “citizenship,

character, and financial, technical, and other qualifications of the ap-

plicant to operate the station....” 47 U.S.C. § 308(b).

*47 U.S.C. § 30%e); Ashbacker Radio Corp., 326 U.S. at 333 (1945).

in question,* and the adjudicative process provided little

guidance as to the relative weights to be accorded various

indicia of comparative merit.? Gradually, however, the

Commission began to identify the factors to be used to

choose the best qualified applicant.’

1. The 1965 Policy Statement

In order to clarify its policies regarding th~ comparative

criteria and their use in licensing proceedings, in 1965,

the Commission issued its Policy Statement on Compara-

tive Broadcast Hearings, 1 FCC 2d 393 (1965) (1965 Policy

Statement). The 1965 Policy Sta:ement explained that the

two main goals for selection among qualified applicants

were: (1) to effect the maximum diffusion of control of the

media of mass communications (“diversification”); and

(2) to achieve the best practicable service to the public. Jd.

at. 394.

The 1965 Policy Statement characterized the diversifi-

cation factor as of “primary significance” in the FCC’s

licensing scheme. Jd. Thus,applicants owning no existing

media concerns were preferred over applicants with such

interests." The second factor enumerated in the 1965 Pol-

icy Statement, participation in station operation by owners

(“integration of ownership into managemenc’”’), was held

of ‘substantial importance” in securing the “best practic-

able service.”” Id. at 395. The Commission stated that cer-

* Amendment of the Commission's Rules to Allow the Selection from

Among Competing Applicants for New AM, FM and Television Stations

By Random Selection (Lottery), 4 FCC Red 2246, 2258, 2266 n. 15

(1989) (Lottery Rulemaking).

*Id. at 2258.

« Lottery Rulemaking, 4 FCC Red at 2258. The Commission noted

that other media interests in the principal community proposed to be

served would be of most significance, followed by other interests in

the remainder of the proposed service area and, finally, other interests

in the United States. 1965 Policy Statement, 1 FCC 2d at 394.

tain attributes of participating owners would be considered

in weighing this criterion, including local residence, past

participation in civic affairs within the service area, and

prior broadcast experience. Jd. at 396.

The 1965 Policy Statement listed other factors which the

Commission considered potentially significant. One was an

applicant’s planned program service. Jd. at 397. Another

was the past broadcast record of any applicant principal

who previously participated in station ownership. Jd at

398. Finally, the Commission announced that, when ap-

propriate, comparative consideration would be accorded to

proposed efficiency of frequency use, id., character qual-

ifications, id. at 399, and any other “relevant and sub-

stantial factor’ designated by the Commission. Jd.

2. Judicial Directives: The Advent of Minority Pref-

erences in Comparative Broadcast Proceedings

The criteria specified in the 1965 Policy Statement were

both race- and gender-neutral. Chapman Radio and Tele-

vision Co., 19 FCC 2d 157, 183 (1969), reconsideration

denied, 20 FCC 2d 624 (Rev. Bd. 1969); Mid-Florida Tel-

evision Corp., 33 FCC 2d 1, 17-18 (Rev. Bd.), review de-

nied, 37 FCC 2d 559 (1972), rev’d, TV 9, Inc. v. FCC, 495

F.2d 929 (D.C.Cir. 1973), cert. denied, 419 U.S. 986 (1974)

(TV 9). Only an applicant’s “experience, background, and

knowledge of the community’’ were deemed appropriate

considerations under the integration component of ‘“‘best

practicable service.”” 495 F.2d at 936. Both the Commission

and its Review Board initially refused to consider an ap-

plicant’s race as an independent’* comparative factor in

Mid-Florida Television Corp., supra, maintaining that such

‘* The Review Board did not foreclose the possibility that an applicant

could render a showing sufficient to establish that, in a particular case,

black ownership could be considered. The Board merely noted that

“such a showing is absent here...." Jd.

= ie Mee i OR Nc

‘Tectien ‘ewtwoh™ © 4 te em

ownership ‘“‘must be shown... to result in some public

interest benefit.”” Jd. at 18. Ultimately, this position was

supplanted by the courts.

In TV 9, the D.C. Circuit rejected the Commission’s

argument that “the ‘Communications Act, like the Con-

stitution is color blind,’” holding that “when minority

ownership is likely to increase diversity of content, espe-

cially of opinion and viewpoint, merit should be awarded”

in the comparison. 495 F.2d at 936-38. The court rebuffed

the Commission’s demand that an applicant seeking mi-

nority credit provide assurance of superior community ser-

vice attributable to such ownership, declaring that

“{rjeasonabie expectation, not advance demonstration, is a

basis for merit to be accorded relevant factors.’’ Jd. at

938. Thus was born the “programming diversity” defense

that the Commission advances today. Subsequently, in Gar-

rett v. FCC, 513 F.2d 1056 (D.C. Cir. 1975), the court

refused to accept the FCC’s view that credit for minority

status should be recognized only where a nexus between

race and program diversity is demonstrated, proclaiming

that race presumptively would promote such diversity when

minority owners are integrated into the management of a

proposed station.'*

Following the court’s directives, the Commissior con-

cluded minority ownership and participation should receive

credit in the comparative process, deciding enhancements

would be awarded to minority applicants under the “best

practicable service” criterion. WPIX, Inc., 68 FCC 2d 381,

411 (1978).* As originally conceived, this enhancement

* Jd. at 1063. The court stated that “black ownership and partici-

pation together are themselves likely to bring about programming that

is responsive to the needs of the black citizenry ...." Jd.

‘* The Commission also developed other policies designed to promote

oe itn of tment facilities tt , , includi

the distress sale policy, which allows a broadcaster whose license is in

jeopardy due to a renewal or revocation proce~ ding to sell the station

at up to 75% of market value to a minority. ned, or minority-con-

trolled purchaser, and a policy of affording ta certificates to sellers

consisted of a “plus-factor weighed along with all other

relevant factors in determining which applicant is to be

awarded a preference.’’ TV 9, 495 F.2d at 941 n. 2." See

also Garrett, 513 F.2d at 1062 n. 40. However, in Waters

Broadcasting Corp., 91 FCC 2d 1260 (1982),’* the modest

“plus-factor’’ was elevated, sub silentio, to “significant

weight.’”’ Jd. at 1267.'7 Subsequent cases followed the re-

of media properties where the purchaser is minority-owned or minority-

controlled. Statement of Mark S. Fowler, Chairman, Federal Commu-

nications Commission, Before the Subcommittee on Telecommunications.

Consumer Protection, and Finance of the House Committee on Energy

and Commerce (Oct. 2, 1986). Three weeks before a panel of the court

of appeals decided this case, a different panel of the same court, in

Shurberg Broadcasting of Hartford. Inc. v. FCC, 876 F.2d 901 (D.C.

Cir. 1989) struck down the Commission's distress sale policy. This Court

granted Astroline Communications’ petition for certiorari in the distress

sale case on January 8, 1990 (Case No. 89-700), and will hear oral

arguments on the distress sale policy following consideration of the

issues presented herein.

‘The TV 9 court distinguished between the award of a preference

and the recognition of merit, claiming the minority factor to be one

of merit only. The court stated:

We use “preference’”’ to mean a decision by the Commission

that the qualifications of a particular applicant in a comparative

hearing are superior to those of another applicant with respect

to one or more of the issues upon which the grant of a permit

or license turns. “Merit’’ or “favorable consideration” is a rec-

ognition by the Commission that a particular applicant has dem-

onstrated certain positive qualities which may but do not

necessarily result in a preference. “‘Merit,”’ therefore, is not a

“preference’’ but a plus-factor weighed along with all other rel-

evant factors in determining which applicant is to be awarded a

preference. Jd. at 941 n. 2

“aff'd sub nom., West Michigan Broadcasting Co. v. FCC, 735 F.2d

601 (D.C. Cir. 1984).

In Waters, the Commission admonished its Review Board for ac-

cording insufficient weight to the “minority ownership” factor in its

comparison between a non-local minority female and a local, non-mi-

nority applicant that was equal on the primary criterion of diversifi-

cation and superior on every other standard comparative factor (i.e.,

integration of ownership with management, local residence, local civic

activities), reversing the Board’s award of the construction permit to

vised Waters formula, and by 1986, the Commission re-

ferred to its minority’* “enhancement”’ as a “preference

policy,” drawing no distinction between “merit’’ and “pref-

erence.””!®

3. The Commission’s Adoption of Gender-Based

Preference Classifications

The FCC’s Review Board extended the minority pref-

erence to females in Mid-Florida Television Corp., 70 FCC

2d 281 (Rev. Bd. 1978), set aside on other grounds, 87

FCC 2d 203 (1981). The Board stated that merit was

warranted for female ownership and participation ‘‘upon

essentially the same basis as the merit given for black

ownership and participation.” Jd. at 326. Nevertheless, the

Board concluded that the preference should be somewhat

the local applicant and awarding the construction permit to the minority

female. Jd.

‘* The Commission's early decisions, as well as the court cases dis-

cussed supra, considered the use of an enhancement factor for “‘black’’

ownership and participation, rather than for minority ownership gen-

erally. However, following Congress’ passage of §115 of the Com-

munications Amendments Act of 1982, Public Law 97-259, 96 Stat. 1087,

Sept. 13, 1982 (codified at 47 U.S.C. §§ 309(iN3KA) - (4X A)) (Pet. App.

102a), which required that preferences for minority applicants be in-

corporated into any random selection licensing scheme adopted by the

Commission, the FCC began to award enhancements for ownership and

participation by Hispanics, American Indians, Alaska Natives and Pa-

cific Islanders. E.g., Metro Broadcasting, Inc., 99 FCC 2d at 704. (Pet.

App. 88a).

'* Reexamination of the Commission's Comparative Licensing, Distress

Sales and Taz Certificate Policies Premised on Racial, Ethnic or Gender

Classifications, 1 FCC Red 1315 (1986), modified, 2 FCC Red 2377

(1987).

*” The decision had its genesis in an opinion written upon reconsi-

deration in Gainesville Media, Inc. 70 FCC 2d 143 (Rev. Bd. 1978),

where the Review Board simply stated that, ‘“{u}pon further reflection,

rege die or wagered Seth yh

participation, despite the absence of record evidence regarding ex-

tent of female ownership in the mass media in Gainesville].” Jd. at

149. The preference did not alter the outcome of the Gainesville pro-

ceeding.

less significant because ‘“‘the need for diversity and sen-

sitivity reflected in the structure of a broadcast station is

not so pressing with respect to women as it is with respect

to blacks.”” Jd. The Commission later acquiesced in the

Board’s decision,”" and the female preference was estab-

lished.

4. The Mechanics of Modern Comparative Selection

The Commission’s comparative process has grown more

complex in the 25 years following release of the 1965 Pol-

wcy Statement. Changes in the process have resulted in a

shift of emphasis in comparative proceedings. Although the

1965 Policy Statement remains the departure point for com-

parative analysis, through time, some factors have proven

less significant than anticipated by the Commission and

others have assumed greater importance.

a. Diversification

Diversification of ownership of mass media, the FCC’s

primary comparative criterion, is of such overwhelming

importance, e.g., FCC v. National Citizens Committee for

Broadcasting, 436 U.S. 697 (1978), that it is seldom a

factor in modern comparative rankings. Under the diver-

sification criterion, interests in other communications me-

dia push an applicant below its comparative starting point.

WPIX, Inc., 68 FCC 2d at 385. “{AJn applicant having no

other attributable mass media interests will all but cer-

tainly prevail over a party with such interests.” Newton

Television, Limited, 3 FCC Red 553 (Rev. Bd. 1988), mod-

vfied, 4 FCC Red 2561 (1989). Persons with other media

interests thus frequently refrain from entering the com-

parative fray. Those who join the comparative process,

however, often can avoid scrutiny under the diversification

criterion. First, applicant principals may pledge to divest

themselves of existing holdings upon grant of their appli-

cations, thus avoiding a diversification demerit. E.g., J.T.

" B.g., Horne Industries, Inc., 94 FCC 2d 815 (Rev. Bd. 1983), mod-

vied, 98 FCC 2d 601, 602-03 (1984).

Parker Broadcasting Corp., 4 FCC Red 5729 (ALJ 1989).”

Accord, FM Broadcast Assignments, 101 FCC 2d 638

(1985). Second, parties may structure their applications to

avail themselves of FCC policies preventing the attribution

of media interests held by passive investors.” Accordingly,

an astute applicant may avoid diversification considera-

tions, regardless of whether the applicant or its principals

have other media interests.

b. Best Practicable Service: Quantitative Inte-

gration of Ownership Into Management

Although ostensibly less weighty than the diversification

criterion, the quantitative degree to which new station

owners propose to be integrated into management, as en-

hanced by certain qualitative attributes that elevate the

applicant for comparative purposes,” remains the predom-

inant consideration under the Commission’s “best practic-

able service’”’ factor.* Quantitative credit is calculated by

“In one recent case, Richardson Broadcasting Group, FCC 89D-50

(ALJ released November 9, 1989), a Commission administrative law

judge noted that ‘“‘{i}t has become standard practice for an FM applicant

to avoid a comparative diversification demerit simply by pledging to

divest themselves of their existing aural holdings if they are granted... .

[C)rediting an FM applicant's divestment pledge, even a good faith

pledge . . . allows the applicant to skirt the Commission's goal of dif-

fusing control of mass communications media.” Id. at n. 10.

* See Attribution of Ownership Interests, 97 FCC 2d 997 (1984),

modified, 58 RR 2d 604 (1985), clarified, 1 FCC Red 802 (1986) (Own-

ership Attribution); Daytona Broadcasting Co. Inc., 103 FCC 2d 931,

934-935 (1986) (making applicable the criteria set forth in Ownership

Attribution to comparative cases for diversification purposes). See also

Payne Communications, Inc. 1 FCC Red 1052 (Rev. Bd. 1986).

_* E.g., Snake River Television, Inc., 26 FCC 2d 380 (Rev. Bd. 1970).

* WPIX, Inc., 68 FCC 2d 381.

* E.g.. New Continental Broadcasting Co., 88 FCC 2d 830, 850 (Rev.

Bd. 1982), reconsideration denied, 89 FCC 2d 631 —

Valley Broadcasting, Inc., 92 FCC 2d 506 (Rev. Bd. 1982).

determining the voting ownership interest?’ of each inte-

grated principal, and totaling it within four categories of

planned participation at the new station: full-time, sub-

stantial, part-time and none. Such credit is critical in

comparative proceedings because qualitative attributes can-

not overcome clear quantitative differences in integration.”

The difficulty in attempting to evaluate the veracity of

an applicant’s integration pledge, coupled with the desire

of each applicant to maximize consideration of qualitative

attributes, has rendered the quantitative calculation of lim-

ited significance. Most applicants propose 100% quantita-

tive integration, or close to it, to maximize credit for

various enhancement factors. Moreover, current FCC pol-

icles permit an applicant to structure its application so

that principals not intending to participate in station man-

agement are not counted in the quantitative calculation.”

The proliferation of “two-tiered” organizational structures,

in which limited partners or non-voting shareholders hold

ownership interests in an applicant but are not counted

“ High Sierra Broadcasting, Inc.. 96 FCC 2d 423 (Rev. Bd. 1983).

* For example, an applicant with four voting shareholders, each hold-

ing a 25% equity interest which proposes to integrate three of its

shareholders full-time into the management of the new station would

receive a 75% full-time quantitative integration credit.

* Committee for Community Access v. FCC, 737 F.2d 74 (D.C. Cir.

1984); Absolutely Great Radio, Inc., 55 Rad. Reg. 2d a 15, 21

(1983); Merrimack Valley Broadcasting, Inc., 92 FCC

1982), Scott & Davis Enterprises, Inc., 88

1980), Van Buren Community Service Broadcaster, Aang: 87

1018 (Rev. Bd. 1980); Alezander S. Klein, Jr., 69 FCC 2d 2134 (Rev.

Bd. 1978). In Merrimack, the Commission's

“in the seventeen years of comparative proceedings under the 1965

Policy Statement, no case of which we are aware has been decided

where the applicant with the clear quantitative integration advantage

did not receive the preference under this criterion.” Jd.

* See Ownership Attribution, 1 FCC Red 802 (1985); Anax Broad-

casting, Ine. 87 FCC 2d 483 (1981); Cotton Broadcasting Company, 4

FCC Red 1781 (1989); Daytona Broadcasting Co. Inc., 103 FCC 2d 931

(1986); Religious Broadcasting Network, 3 FCC Red 4085 (Rev. Bd.

1988).

for integration*! prompted one FCC administrative law

judge to note that “(w]ith ever increasing frequency,

broadcast applications are being structured to claim max-

imum integration and enhancement credit.’’**Accordingly,

determinations regarding integration of ownership into

management (and thus, “best practicable service”) invar-

iably turn on qualitative enhancement factors, or prefer-

ences.*

c. Best Practicable Service: Qualitative Integra-

tion Enhancement Factors

The qualitative attributes of participating owners which

can enhance an applicant’s quantitative integration pro-

posal in FCC proceedings have not changed significantly

since the 1965 Policy Statement. However, the addition of

minority and female preferences to the enhancement

scheme and the frequent presence of two-tiered ownership

structures, have affected the relative weights of the en-

hancement factors, which currently are: (1) present or pro-

posed local residence by integrated personnel in the

station’s community or proposed service area; (2) the de-

gree to which minority and female owners will be inte-

grated into station management; (3) past participation in

civic activities within the community of license or proposed

service area, and (4) the past broadcast experience of in-

tegrated principals.* The most significant modern en-

* An applicant consisting of 2 voting shareholders, each with a 25%

ownership interest and proposing 100% integration into management,

and 2 non-voting shareholders, each with a 25% ownership interest but

not proposing integration, for example, receives 100% quantitative credit

and only attributes of its voting shareholders are considered for qual-

itative comparative purposes.

* Pacific Television, Ltd., FCC 86D-43, slip op. (ALJ released July

26, 1986). The administrative law judge went on to remark that “‘it is

simply unjust to allow an applicant to benefit from a sham arrangement

designed to create the illusion of maximum integration credit to the

detriment of a competing legitimate applicant.’’ Jd.

= F.9., Independent Masters, Ltd, 104 FCC 2d 178, par. 17 (Rev. Bd.

1986).

* Lottery Rulemaking, 4 FCC Red 2246, 2259 (1989).

hancement factors are local residence and minority or

female status. Local residence and minority status osten-

sibly are co-equal in weight.** Female status is entitled to

somewhat less weight than minority status,** but, as noted,

the exact weight of the female enhancement remains un-

certain. Civic participation, considered part of a proposed

owner’s local residence background, is close on the heels

of the foregoing in terms of importance.*’ Past broadcast

experience, a distant last, usually is only a tie-breaker. Jd.

FCC administrative law judges award preferences to ap-

plicants based on these enhancement factors, ranging from

‘‘overwhelming”’ to “substantial” to ‘“‘moderate”’ to “‘slight’”’

to “‘very slight.”** In making this determination, the en-

hancements are viewed within their attributable, quanti-

tative contexts. For example, a corporate applicant

consisting of three 33'/,% shareholders, one local resident

with voting privileges and two non-residents without vot-

ing rights, proposing to integrate the voting shareholder

into management, would be entitled to enhancement credit

for its proposed 100% local resident ownership structure;

the non-voting shareholder’s attributes would not be con-

sidered. Thus, careful attention paid to structuring an ap-

plication often can assure victory under the “best

practicable service’’ criterion for those maximizing use of

the Commission’s enhancement and attribution policies.

d. Other Comparative Factors

Ye 1965 Policy Statement specified other factors once

considered of comparative significance. However, in mod-

* E.g.. Radio Jonesboro, Inc., 100 FCC 2d 941, 945-946 (1985); Linda

Crook, 3 FCC Red 354 (1988). But see Waters Broadcasting Corp., 91

FCC 2d 1260, 1267 (1982) (where Commission allowed a minority female

from a distant city to prevail over a local, non-minority applicant that

was superior on every other comparative factor).

* Mid-Florida Television Corp., 69 FCC 2d 607, 652 (Rev. Bd. 1978),

set aside on other grounds, 87 FCC 2d 203 (1981).

* 1965 Policy Statement, 1 FCC 2d at 396.

* Lottery Rulemaking, 4 FCC Red at 2259.

ern comparative proceedings, those factors are of limited

import. The criteria for proposed program service* and

past broadcast record,“ for example, almost never are at

issue in comparative decisions.*’ The criterion for efficient

use of a frequency,*® known today as “comparative cov-

erage,”’ also seldom is at issue because the credit awarded

for bringing service to more persons is generally only ‘‘very

slight.’’* In 1986, the Commission announced that char-

acter issues would no longer be relevant in comparative

proceedings where consideration of such issues would not

result in disqualification. Thus, the Commission’s quan-

titative and qualitative integration assessments under the

‘best practicable service’ criterion remain dispositive in

most cases

5. Application of the Minority and Female Pref-

erences in the Instant Case.

This, case was decided, not surprisingly, under the Com-

mission's ‘‘best practicable service’ criterion. The Review

Board awarded Metro a ‘‘79.2% full-time plus 19.8% part-

“ 1965 Policy Statement, 1 FCC 2d at 397.

“Id. at 398.

“ Lottery Rulemaking, 4 FCC Red at 2266 n. 17. Applicants seeking

to add such issues to FCC proceedings first must provide an extremely

stringent threshold evidentiary showing demonstrating the unusual re-

cord of their past broadcast records or unusual superior devotion to

public service as a result of their programming proposal. The required

showing rarely is met. E.g. Commercial Radio Institute, 78 FCC 2d

1016 (Rev. Bd. 1980); Gilbert Group Inc., 49 Rad. Reg. 2d 1081, 1082

(P & F) (1981); Omaha TV 15, 4 FCC Red 730 (1989).

“ 1965 Policy Statement, 1 FCC 2d at 398.

“ E.9., Armando Garcia, FCC 87D-25 (ALJ 1987); Alan K. Levin,

96 FCC 2d 710 (Rev. Bd. 1984); Cotton Broadcasting Company, 60 Rad.

Reg. 2d 92, 95 (P & F) (Rev. Bd. 1986) (where the Board only awarded

a very slight coverage preference where an applicant served 118,000

more people).

“ Report, Order and Policy Statement Regarding Character Qualifi-

cations in Broadcast Licensing, 102 FCC 2d 1179 (1986), reconsider-

ation denied, 1 FCC Red 421 (1986).

time quantitative integration credit’’ and Rainbow a “90%

full-time credit.’’ 99 FCC 2d at 703. (Pet. App. 86a). Rain-

bow’s quantitative advantage was insufficient to be deci-

sional. 2 FCC Red at 1475. (Pet. App. 56a). Therefore,

the Commission examined the parties’ qualitative attri-

butes, and the minority and female preferences were found

dispositive. Metro prevailed on the local residence and civic

participation qualitative attributes. However, after empha-

sizing that Rainbow had 90% hispanic ownership partici-

pation, whereas Metro had only one 19.8% principal who

was black,** the Board concluded that “although the qual-

itative comparison between Rainbow and Metro is close,

Rainbow’s substantial minority preference, in conjunction

with its slight female ownership advantage (5% vs. Metro’s

0%) and solid broadcast experience preference, somewhat

outweighs Metro’s local residence and civic participation

advantage.’’ 99 FCC 2d at 704. (Pet. App. 88a). The Com-

mission’s subsequent denial of Metro’s application for re-

view (Pet. App. 62a) transformed the Review Board’s

Decision into that of the Commission, pursuant to Section

155 of the Communications Act. 47 U.S.C. § 18¢e,3).**

B. The Commission’s Reexamination of Its Prefer-

ences in Steele and Remand of the Instant Case

From the Lower Court

The Commission’s race-, ethnic- and gender-based pref-

erence policies entered a state of flux following a challenge

to the female preference in Steele v. FCC, 770 F.2d 1192

(D.C. Cir. 1985). In Steele, a panel held that “the Com-

mission exceeded its authority under the Federal Com-

munications Act by adopting a female preference in

comparative broadcast proceedings.” Jd. at 1199. The D.C.

** Metro Broadcasting, Inc., 99 FCC 2d at 704 (Rev. Bd. 1984).

“On remand, discussed infra at 17, the Commission acknowledged

that, “absent credit for its minority and female integration, Rainbow

would lose its qualitative advantage over Metro.”” Metro Broadcasting,

Inc., 2 FCC Red at 1475. (Pet. App. 56a).

Circuit, sitting en banc, vacated the panel decision, granted

rehearing, and called for rebriefing,*’ after the instant case

had been briefed and awaited oral argument.

Before the en banc Steele court, the FCC submitted a

motion for remand (S.J.A. 95) with its brief on the merits

(S.J.A. 57), and concurrently released a Public Notice, FCC

86-387 (Sept. 15, 1986) (Pet. App. 106a), announcing its

conclusions that both its gender and minority preference

policies were indefensible on the record as it stood. In its

brief, the Commission admitted that it “had neither con-

stitutional authority nor statutory basis for the female

preference,’’ and requested remand for further consider-

ation. (S.J.A. 76, 78). The Commission proclaimed in its

motion for remand that “race, sex or national origin per

se should not be a basis for licensing determinations,”’

(S.J.A. 96), expressing its disbelief that “‘a sufficient foun-

dation [existed] to satisfy statutory review requirements

or the heightened scrutiny the Constitution requires of

racial or gender based preferences.” (S.J.A. 96). Through

its Public Notice, the Commission announced that it would

be “‘instituting a proceeding to collect evidence if allowable

in light of the court’s en bane action in Steele,” Public

Notice (Pet. App.107a), and reiterated that “racial and

gender preferences are constitutionally suspect and before

they can be imposed the agency must have an ‘exceedingly

persuasive justification.’ ’’* Jd. (Pet. App. 107a).

The en banc Steele court granted the FCC’s request,

remanding Steele ‘“‘in order to permit the agency to reex-

amine the bases for its minority and female preference

policies.’’** The record in this case was remanded for the

same purpose,” and, in due course, the Commission, by

“ Steele never reached an en banc circuit decision because the case

subsequently was settled. James U. Steele, 4 FCC Red 4700 (1989).

“(citing Mississippi University for Women v. Hogan, 458 U.S. 718,

724 (1982)).

* Metro Broadcasting, Inc., 3 FCC Red 866 (1988) (Pet. App. 48a).

* Id. The record in Shurberg, 876 F.2d 901, the case involving the

Commission's distress sale policies, also was remanded at this time.

876 F.2d at 927 (MacKinnon, J., concurring in judgment).

Notice of Inquiry, opened MM Docket No. 86-484, encap-

tioned Reexamination of the Commission’s Comparative Li-

censing, Distress Sales and Tax Certificate Policies

Premised on Racial, Ethnic or Gender Classifications, 1

FCC Red 1315 (1986), modified, 2 FCC Red 2377 (1987)

(Racial, Ethnic or Gender Classifications, or Inquiry).

The Commission collected evidence from numerous par-

ties regarding its minority and female preference policies

but the Inquiry was doomed on December 22, 1987, when

the President signed House Joint Resolution 395 into law.

Racial, Ethnic or Gender Classifications, 3 FCC Red 766

(1988); Continuing Appropriations for Fiscal Year 1988

and for Other Purposes, Pub. L. No. 100-102, 101 Stat.

1329 (1987) (1988 Appropriations Act).

C. Congressional Entrenchment of the Commission's

Preference Policies and the Disposition of This

Case by the Court of Appeals

The 1988 Appropriations Act, which contained the fund-

ing legislation for fiscal year 1988, directed the FCC, inter

alia, ‘‘to close MM Docket No. 86-484 with a reinstatement

of prior policy’’ with respect to “minority and women own-

ership of broadcasting licenses ....”’ 1988 Appropriations

Act. (Pet. App. 100a). The Committee Report which re-

sulted in this provision instructed the FCC to resolve,

within 60 days, “all proceedings that have been remanded

by the court of appeals ...in a manner consistent with

the policies that mandated incentives for minorities and

women in broadcast ownership,” specifically referencing

the instant case. Following the enactment of the 1988

“ Rep. No. 100-182, 100th Cong., lst Sess. (1987) (S.J.A. 54).

“ Id. Similar language was incorporated into the appropriations leg-

islation for fiscal years 1989, Departments of Commerce, Justice and

State, the Judiciary and Related Agencies Appropriations Act of 1989,

Pub. L. No. 100-459, 102 Stat. 2216 (December, 1988) (1989 Appro-

priations Act) (Pet. App. 101la), and 1990. Departments of Commerce,

Justice and State, the Judiciary and Related Agencies Appropriations

Act of 1990, Pub. L. 101-162, 103 Stat. 988 (November, 1989) (1990

Appropriations Act) (App. 1a).

Appropriations Act, the Commission abandoned its /n-

quiry, decided all cases held in abeyance pursuant to its

order therein, and began to reapply its race-, ethnic- and

gender-based preferences in comparative proceedings. E.g.,

Faith Center, Inc., 3 FCC Red 868 (1988). The Commission

also reactivated its earlier affirmance of the Review

Board’s Decision in this case, which awarded the Orlando

construction permit to Rainbow on the basis of the mi-

nority and female preferences. Metro Broadcasting, Inc. 3

FCC Red 866. (Pet. App. 48a).

With Racial, Ethnic or Gender Classifications closed

down, Winter Park, on Metro’s motion, was recalled by

the court of appeals, rebriefed, argued and decided. Be-

tween oral argument and decision, this Court decided City

of Richmond v. J.A. Croson Co., 109 S.Ct. 706 (1989) (Cro-

son), which should have influenced the lower court’s ruling.

Recognizing this, Metro lodged a Supplemental Brief with

the lower court.** However, Metro’s motion for leave to

file the brief was denied and the brief rejected. (Pet. App.

104a).

The court of appeals, in a split decision, upheld both

the constitutionality of the Commission’s preference polli-

cies, and the award of the Orlando construction permit to

Rainbow. 873 F.2d at 349. (Pet. App. 2a). On September

18, 1989, Metro petitioned this Court for a writ of

certiorari, which petition was granted on January 8, 1990.

(J.A. 5).

SUMMARY OF ARGUMENT

The Commission’s race-, ethnic- and gender-based pref-

erences violate the equal protection component of the Due

Process Clause for a number of reasons and in a number

of ways. The minority preferences were developed by the

FCC following two District of Columbia Circuit opinions—

TV 9, 495 F.2d 929 and Garrett, 513 F.2d 1056—where

* A copy of Metro's Supplemental Brief has been submitted to this

Court.

the agency was reversed for not awarding “merit” for

black ownership participation. In TV 9, the court held that

“when minority ownership is likely to increase diversity

of content, especially of opinion and viewpoint, merit should

be awarded.”’ 495 F.2d at 938. In Garrett the court said

“black ownership and participation together are them-

selves likely to bring about programming that is responsive

to the needs of the black citizenry ... ."’ 513 F.2d at 1063.

Merit meant nothing more than a plus-factor. TV 9, 495

F.2d at 941 n. 2.

The Commission on its own up-graded the plus-factor

to a factor of “significant weight” in Waters, 91 FCC 2d

1260, 1267 (1982). It had no record before it on which to

base this change of policy; indeed the opposite was true

in that the comparative proceeding at hand was for an

FM permit in western Michigan where there were few

minorities. Ever since, the favoritism afforded for racial

and ethnic status has been deemed a “preference,”’ and

is today at the top of the list—a very short list.

In 1978 the Review Board extended the minority pref-

erence to female applicants in Mid-Florida Television

Corp., 70 FCC 2d 281, for no other reason than “upon

essentially the same basis as the merit given for black

ownership and participation. Jd. at 326. The female pref-

erence carries less weight than the minority preference,

but how much less no one knows.

The foregoing scenario violates every conceivable equal

protection tenet. Fostering of program diversity, where it

is known by the Commission to already have been achieved

in the marketplace, is neither a compelling nor an impor-

tant governmental interest. The Commission has acknowl-

edged candidly that the record as it currently exists bears

no support for the preferences—they are not the remedial

product of any prior discrimination by the FCC, nor is

their purpose to remedy any kind of past discrimination.

They rest on the unproven assumption that Hispanics are

likely to program for Hispanics, blacks for blacks and

women for women—all of which is absurd. The evidence

ally Am

that does exist is that licensees are driven by market

forces.

The only appropriate standard of review is that of “strict

scrutiny,”’ both for race/ethnicity and for gender. In ad-

dition to failing the compelling governmental interest test,

the FCC’s preferences fail the narrow tailoring test. They

are open-ended as to time and application. Moreover, the

“diversity’’ they are designed to promote is stereotyping,

with no record to support it and bearing no relationship

to student body diversity in the academic setting.

In 1982 Congress amended the Communications Act to-

provide that if the Commission were to employ lotteries

as its selection process, minority preferences must be in-

corporated into the weighing process. Program diversity

and underrepresentation were mentioned in the spartan

legislative history. Gender was not the subject of the bill.

In any event, the Commission has never adopted lotteries

as its method of selecting winning applicants in full-power

broadcast proceedings, making the lottery statute irrele-

vant herein. In 1987, in an appropriations bill, Congress

defunded the Commission’s first and only effort to deter-

mine whether a nexus exists between ownership compo-

sition and program diversity and required the FCC to

restore its minority and gender preferences. However, ap-

propriations measures are not entitled to the deference

accorded substantive acts of Congress.

ARGUMENT

I. The FCC’s Race-, Ethnic-, and Gender-Based Pref-

erence Policies Violate The Equal Protection Com-

ponent Of The Due Process Clause Of The

Constitution Of The United States Of America.

Although the TV 9 majority was cautious to explain that

it was not directing the FCC to adopt a “new comparative

policy of awarding preferences for Black or minority own-

ership, per se,”” 495 F.2d at 941 and nn. 2, 3, the me-

“ See also discussion at p. 8, supra.

chanics of modern comparative selection assure that the

original “‘plus factor’’ of preferential merit is dispositive

in all but a few cases. First, preferential treatment was

extended to women. Consequently, approximately 75% of

the U.S. population—everyone with the exception of cau-

casian males**—currently is afforded strong preferential

treatment for new broadcast ities. Second, the

modest “plus factor’ ordered by the TV 9 court was el-

evated to “significant weight” in Waters, 91 FCC 2d at

1267, and subsequent licensing cases apply this formula.

Third, through use of limited partnership equity or non-

voting stock, applicants now may shield principals who

do not propose to actively integrate into station manage-

ment or those with other media interests from comparative

consideration, offer token equity to minority and/or female

principals so as to claim 100% minority and/or female own-

ership integration credit, and prevail easily over any non-

preferred applicant.’ In sum, because both the diversifi-

cation criterion and quantitative ownership integration fac-

_tor may be neutralized by a perceptive applicant, the

minority and/or female ‘‘enhancements”’ are, in most cases,

all that remains for the FCC to consider in awarding a

new broadcast station license.

The effect of these developments is that white male

applicants seldom have prevailed in broadcast comparative

contests in recent years, leading one veteran FCC admin-

istrative law judge to observe in 1984 that two applicants

had “deluded themselves into believing white males can

prevail in a standard comparative setting at this point in

time.” Debra D. Carrigan, 100 FCC 2d 741, 759-760 n.

* When, to the female preference, there is added the preference for

“Blacks, Hispanics, American Indians, Alaska Natives, and Pacific Is-

landers.” See 47 U.S.C. § 309(iN3XcKii), P.L. 97-259, 96 Stat. 1087, and

discussion at n.18, supra.

* E.g., United American Telecasters, Inc. v. FCC, 801 F.2d 1436 (D.C.

Cir. 1986); Pacific Television, Ltd., 2 FCC Red 1101 (Rev. Bd. 1987),

review denied, 3 FCC Red 1700 (1988). See also discussion at pp. 11,

12, supra.

* See discussion at p. 13, supra.

23 (ALJ 1984). Bearing out this cynicism is the fact that,

in 51 of the 78 most recently reported commercial broad-

cast licensing cases, applicants said to be owned or con-

trolled by minorities or females have prevailed in initial

comparative decisions.” This appears to be not a “modest

“ A female applicant ultimately prevailed in that case. Debra D. Car-

rigan, 100 FCC 2d 721 (Rev. Bd. 1985), aff'd per judgment sub nom.,

Bernstein/Rein Advertising, Inc. v. FCC, 830 F.2d 1188 (D.C. Cir. 1987).

* Duane Tomko, 2 FCC Red 206 (ALJ 1987) (minority); Tulsa Broad-

casting Group, 2 FCC Red 1149 (ALJ 1987\minority and female); Mag-

dalene Gunden Partnership, 2 FCC Red 1223 (ALJ 1987) (minority and

female); Irving A. Uram, 2 FCC Red 1710 (ALJ 1987) (white male);

Charles Ray Shinn, 2 FCC Red 2234 (ALJ 1987) (white male); Moore

Broadcast Industries, 2 FCC Red 2754 (ALJ 1987) (female); James and

Sharon Leon Sepulveda, 2 FCC Red 2937 (ALJ 1987) (minority and

female); Dalton Television Associates, Ltd., 2 FCC Red 2940 (ALJ 1987)

(minority); Linda Crook, 2 FCC Red 3511 (ALJ 1987) (female); Armando

Garcia, 2 FCC Red 4166 (ALJ 1987) (minority); Elijah Broadcasting

Corp., 2 FCC Red 4468 (ALJ 1987) (white male); Bogner Newton Corp.,

2 FCC Red 4792 (ALJ 1987) (minority); Washoe Shoshone Broadcasting,

2 FCC Red 5362 (ALJ 1987) (minority and female); Thompson Broad-

casting of Battle Creek, Inc., 2 FCC Red 5926 (ALJ 1987) (white male);

Mark L. Wodlinger, 2 FCC Red 6027 (ALJ 1987) (white male); Hispanic

Keys Broadcasting Corp., 2 FCC Red 6255 (ALJ 1987) (minority); Re-

ligvous Broadcasting Network, 2 FCC Red 6561 (ALJ 1987) (minority

and female); Gali Communications, Inc., 2 FCC Red 6967 (ALJ 1987)

(minority and female); Priscilla L. Schwier, 2 FCC Red 7153 (ALJ

1987) (white male); Genese Communications, Inc., 2 FCC Red 7252 (ALJ

1987) (minority and female); Progressive Communications, 3 FCC Red

386 (ALJ 1988) (white male); Northampton Media Associates, 3 FCC

Red 570 (ALJ 1988) (minority and female); Elaine Eicher, 3 FCC Red

812 (ALJ 1988) (female); Catherine Juanita Henry, 3 FCC Red 1492

(ALJ 1988) (minority and female), UN2J/C Communications (Limited),

3 FCC Red 2243 (ALJ 1988) (minority and female), 62 Broadcasting,

Ine., 3 FCC Red 4429 (ALJ 1988) (minority and female); Marlin Broad-

(ALJ 1988) (minority

casting of Central Florida, Inc., 3 FCC Red 4699

and female); William S. Daugherty. II], 3 FCC Red 4999 (ALJ 1988)

(female); Evangel Communications, Inc., 3 FCC Red 5421 (ALJ 1988)

(white male); Port Huron Family Radio, Inc. 3 FCC Red 5562 (ALJ

1988) (white male; Nirvana Radio Broadcasting Corp.. 3 FCC Red

6038 (ALJ 1988) (white male); JAM Communications, Inc., 3 FCC Red

Saab GALS SUE Coden and tema Eien Beeatanien then, 0 90E

Red 6587 (ALJ 1988) (minority and female); DLBS, Incorporated,

FCC Red 6710 (ALJ 1988) (minority and female); GNOL Broadcasting,

plus,” but a deck stacked in favor of those who fit certain

racial, ethnic and/or gender classifications.

The invidiousness of this outcome and the governmental

process at work to achieve it, directly implicate constitu-

Inc., 3 FCC Red 6796 (ALJ 1988) (white male); Pontchartrain Broad-

casting Company, Inc., 3 FCC Red 6800 (ALJ 1988) (minority and

female); The Baltimore Radio Show, Inc., 3 FCC Red 6823 (ALJ 1988)

(minority and female); Richard P. Bott, I], 3 FCC Red 7094 (ALJ 1988)

(white male); William M. Piner, 3 FCC Red 7101 (ALJ 1988) (minority

and female); Ramon Rodriguez & Associates, 4 FCC Red 370 (ALJ

1989) (minority and female); Beaux Bridge Broadcasters Limited Part-

nership, 4 FCC Red 581 (ALJ 1989) (minority); Corydon Broadcasters,

Ltd., 4 FCC Red 1537 (ALJ 1989) (minority and female); Community

Broadcasting Company, Inc., 4 FCC Red 1986 (ALJ 1989) (female):

Berea Broadcasting Co., Inc., 4 FCC Red 2341 (ALJ 1989) (female),

Coastal Broadcasting Partners, 4 FCC Red 2345 (ALJ 1989) (minority

and female); Salinas Broadcasting, 4 FCC Red 2762 (ALJ 1989) (white

male), Renee Marie Kramer, 4 FCC Red 2848 (ALJ 1989) (minority

and female); Rockledge Radio, Ltd., 4 FCC Red 3465 (ALJ 1989) (white

male); Charisma Broadcasting Corp., 4 FCC Red 4018 (ALJ 1989) (mi-

nority and female); Perry Televiston, Inc., 4 FCC Red 4063 (ALJ 1989)

(minority); John Jay Iselin, 4 FCC Red pat (ALJ 1989) (white male):

Aspen FM, Inc., 4 FCC Red 4462 (AL. 1989) (white male); George

Henry Clay, 4 FCC Red 4564 (ALJ 1989) (minority); Weyburn Broad-

casting Limited Partnership, 4 FCC Red 5310 (ALJ 1989) (minority

and female); Global Information Technologies; Inc., 4 FCC Red 5445

(ALJ 1989) (female); Radio Delaware, Inc., 4 FCC Red 5555 (ALJ 1989)

(female); Anchor Broadcasting, Limited Partnership, 4 FCC Red 5687

(ALJ 1989) (minority); Shawn Phalen, 4 FCC Red 5714 (ALJ 1989)

(female), J.T. Parker Broadcasting Corp., 4 FCC Red5729 (ALJ 1989)

(white male); Colonial Communications, Inc., 4 FCC Red 5969 (ALJ

1989) (female); Julia S. Zozaga, 4 FCC Red 6271 (ALJ 1989) (white

male); Poughkeepsie Broadcasting Limited Partnership, 4 FCC Red 6453

(ALJ 1989) (minority); Rayne Broadcasting Co., Inc., 4 FCC Red 6760

(ALJ 1989) (minority and female), Inlet Broadcasting, Co., 4 FCC Red

6760 (ALJ 1989) (white male); Advanced Broadcast Technologies, Inc.,

4 FCC Red 6821 (ALJ 1989) (white male); Ronald Sorenson, 4 FCC

Red 6961 (ALJ 1989) (white male); Don H. Barden, 4 FCC Red 7043

(ALJ 1989) (minority and female); Adlai E. Stevenson IV, 4 FCC Red

7153 (ALJ 1989) (white male); Ocean Pines LPB Broadcast Corp., 4

FCC Red 7767 (ALJ 1989) (white male); Pueblo Radio Broadcasting

4 FCC Red 7989 (ALJ 1989) (minority); Sarasota-Charlotte Broadcasting

tional prohibitions. The Equal Protection Clause of the

Fourteenth Amendment commands that “[njo State

shall... deny to any person within its jurisdiction the

equal protection of the laws,” a directive that all persons

similarly situated must be treated alike. City of Richmond

v. Croson, 109 S.Ct. 706, 712 (1989) (Croson) (O'Conner,

J., plurality opinion); Cleburne v. Cleburne Living Center,

473° US. 432, 439 (1985), Plyler v. Doe, 457 U.S. 202, 216

(1982). The Due Process Clause of the Fifth Amendment*

requires that the Federal Government guarantee to its

citizens the same equal protection.” Pursuant thereto, any

governmental distinction among groups or individuals must

be justifiable. Fullilove v. Klutznick, 448 U.S. 448, 496

(1980) (Powell, J. yey gree 473 U.S. at 470

the law is denied where, as here, po teh we.

Corp., 4 FCC Red 8106 (ALJ 1989) (female); Rebecca L. Boedker, 4

FCC Red 8328 (ALJ 1989) (white male); Rem Malloy Broadcasting, 4

FCC Red 8423 (ALJ 1989) (minority); WCVQ, Inc., 4 FCC Red 8554

(ALJ 1989) (minority and female); Albert F. Gary, FCC 90D-1 (ALJ

released Jan. 22, 1990) (white male); Silver Springs Communications,

FCC 90D-4 (ALJ released Jar. 24, 1990) (minority and female); Mid-

Ohvo/Capital Communications, Limited Partnership, FCC 90D-2 (ALJ

~ U.S. Const. amend XIV (emphasis added).

“ The Fifth Amendment provides that “[njo person shall be... de-

prived of life, liberty, or property, without due process of law....”

U.S. Const. amend V. (Pet. App. 100a).

“ E.9., Rostker v. Goldberg, 453 U.S. 57 (1981); Vance v. Bradley,

440 U.S. 93, 95 n. 1 (1979), Davis v. Passman, 442 U.S. 228,

(1979), Regents of the University of California v. Bakke, 438 U.S.

7 n 43 (1978), Hampton v. Mow Sun Wong, 426 U.S. 88, 100 (1

Buckley v. Valeo, 424 U.S. 1, 93 (1976), Weinberger v. Wiesenfeld, 420

U.S. 636, 638 n. 2 (1975) (Wisenfeld), Cruz v. Hauck, 404 U.S. 59, 63

n. 10 (1971); Schneider v. Rusk, 377 U.S. 163, 168 (1964), Bolling v

Sharpe, 347 U.S. 497, 500 (1954).

as to distinguish, in rules or programs, between persons

who should be regarded as similarly situated.”

The Commission’s race-based preference gnaws at the

heart of the Constitution’s equal protection pledge. A “core

pre ee Oe SS eee

to “do away with all governmentally imposed discrim-

tnctions based en cuca” GH Jackson Board of Ed-

ucation, 476 U.S. 267, 277 (1986) (Powell, J., plurality

opinion); Palmore v. Sidoti, 466 U.S. 429, 432 (1984). This

is because “‘[d]istinctions between citizens solely because

of their ancestry are by their very nature odious to a free

people whose institutions are founded upon the doctrine

of equality,” and “are irrelevant to almost every gov-

ernmental decision.’ The Commission's preferences for

other minority groups similarly offend constitutional prin-

ciples; the Equal Protection Clause disfavors classifications

based upon ethnicity and national origin,~ as well as race.

And, the Commission’s female preference policy tests this

Court’s prior determinations that, because “sex, like race

and national origin, is an immutable characteristic deter-

mined solely by the accident of birth,”"” governmentally

imposed gender-based classifications endanger the equal

“ Tripe, AMERICAN CONSTITUTIONAL Law 993 (1978).

“ Regents of the University of California v. Bakke, 438 U.S. 265 (1978)

(Bakke) (Powell, J.. plurality opinion) (citing Hirabayashi v. United

States, 320 U.S. 81, 100 (1943).

“ Fullilove, 448 U.S. at 496 (Powell, J.. concurring), Anderson v.

Martin, 375 U.S. 399. 402, 404 (1964).

“E.g.. Strauder v. West Virginia, 100 U.S. 303, 308 (1880), Yick

Wo v. Hopkins, 118 U.S. 356 (1886), Truaz v. Raich, 239 U.S. 33, 41

(1915), Hernandez v. Tezas, 347 U.S. 475 (1954). As the Court stated

in Yick Wo, the guarantees of equal protection “are universal in their

application, to all persons within the territorial jurisdiction, without

regard to any differences of race, of color, or of nationality; and the

equal protection of the laws is a pledge of the protection of equal

laws.” 118 U.S. at 369.

joined by Douglas, J.. White, J.. and Marshall, J.)

protection guarantees of the Fifth and Fourteenth Amend-

ments.*

These concerns are not dispelled because the Commis-

sion’s race-, ethnic-, and gender-based classifications op-

erate against a group that historically has not been

subjected to governmental discrimination. E.g., Wygant,

273 U.S. at 267; Mississippi University for Women, 458

U.S. at 724 n. 9 (1982); Bakke, 438 U.S. at 291, 295;

Casteneda v. Partida, 430 U.S. 482, 499-500 (1977); id. at

501 (Marshall, J. concurring). Serious problems of justice

are connected with ‘the idea of preference itself;** ‘‘ad-

vancement sanctioned, sponsored or approved by the State

should ideally be based on individual merit or achievement,

or at the least on factors within the control of an indi-

vidual.’ Nor does the fact that the Commission’s pref-

erences emanate from the Federal Government, rather than

a State, quell concern; the standards of equal protection

aiieie to the Federal Government under the Fifth

Amendment are the same as those applied to state and

local governments under the Fourteenth.”

Selection of an appropriate equal protection review

standard here, however, is problematic. The members of

this Court have yet to agree upon the standard of review

required for race-based preferences and set-asides, al-

though the Court has acknowledged that race-based re-

“ E.g.. Mississippi University for Women, 458 U.S. at 722; Michael

M. v. Superior Court of Sonoma County, 450 U.S. 464 (1981); Craig

v. Boren, 429 U.S. 190 (1976); Weinberger v. Wiesenfeld, 420 U.S. 636

(1975); Frontiero, 411 U.S. 677; Reed v. Reed, 404 U.S. 71 (1971).

* Bakke, 438 U.S. at 298 (Powell, J. plurality opinion).

~ Id. at 360-361 (Brennan, J., joined by White, J., Marshall, J., and

Blackmun, J., concurring in part and dissenting in part).

" B.g., Buckley, 424 U.S. 93 (per curiam); Fullilove, 448 U.S. at 523

n. 1 (Marshall, J. dissenting); San Francisco Arts & Athletics, Inc. v.

United States Olympic Committee, 488 U.S. 522, 543 n. 21 (1987);

Wiesenfeld, 420 U.S. at 638 n. 2 (1975).

medial action sometimes is permissible. Moreover, this

Court’s reluctance to enunciate a definitive standard of re-

view for gender-based preference classifications creates spe-

cial problems herein, where the FCC’s gender and minority

preferences often compete against one another for broad-

cast privileges. Application of the prevailing separate stand-

ards for minority and gender-based classifications in this

case could result in invalidation of one preference policy

and proliferation of another, leading only to a shift in pref-

erence classifications as new groups attempt to demonstrate

their similarity to the “‘validated’”’ and preferred group. Ad-

ditionally, prior “affirmative action” cases have analyzed

preferential treatment only against purported remedial

goals, whereas the Commission’s preference classifications

have no remedial basis. Finally, although this Court’s recent

cases have treated preferences and set-asides established by

Congress and State or local governments, the Court has

not articulated a review standard applicable to classifica-

tions instituted and applied by federal agencies. These dif-

ficulties may be surmounted, however, by this Court’s

unanimous adoption of a “strict scrutiny” standard of re-

view for the FCC’: racial, ethnic and female preference

policies.

A. Strict Scrutiny Should Be Adopted As The Stand-

ard Of Equal Protection Review Appropriate For

Race-, Ethnic-, And Gender-Based Classifications

Which Are Imposed And Administered By The Ju-

diciary Or Federal Administrative Agencies.

This Court has recognized that, although equal protection

principles strongly prohibit government-drawn distinctions

between individuals or groups solely on the basis of race,”

~ Bakke, 438 U.S. at 291 (Powell, J., joined by White, J., plurality

opinion) (“‘{rjacial and ethnic distinctions of any sort are inherently sus-

pect and thus call for the most exacting judicial examination.”); Wygant,

476 U.S. at 313 (Stevens, J., dissenting) (‘‘[t}he Equal Protection Clause

absolutely prohibits the use of race in many governmental contexts.’’);

Fullilove, 448 U.S. at 523 (Stewart, J., dissenting) (“any official action

that treats a person differently on account of his race or ethnic origin

racial and ethnic classifications sometimes are “relevant to

the one legitimate state objective of eliminating the per-

nicious vestiges of past discrimination’’* where such dis-

crimination has been identified. Similarly, “in limited

circumstances,” a gender-based classification favoring one

sex can be justified if it “intentionally and directly assists

members of the sex that is disproportionately burdened,”

and “if members of the gender benefited by the classifi-

cation actually suffer a disadvantage related to the classi-

fication.””* These limited exceptions to the Constitution’s

unwavering equal protection guarantees necessarily mean

is inherently suspect and presumptively invalid’); Cleburne, 473 U.S. at

471 (Marshall. J.. joined by Brennan, J.. and Blackmun, J., concurring

in part and dissenting in part) (“(the] Fourteenth Amendment .. . pro-

hibits castes created by law along racial or ethnic lines”); Croson, 109

S.Ct. at 734 (Kennedy, J., concurring in part) (“(t}he moral imperative

of racial neutrality is the driving force of the Equal Protection Clause."’);

id. at 73 (Scalia, J., concurring) (“discrimination on the basis of race is

illegal, immoral, unconstitutional, inherently wrong, and destructive of

democratic society) (quoting A. BickeEL, THE Morauity Or Consent 133

(1975)).

* Wygant, 267 U.S. at 301 (Marshall, J., dissenting).

‘ Accord, Croson, 109 $.Ct. at 720 (O'Conner, J., joined by Rehnquist,

C.J., and White, J., plurality opinion) (‘Classifications based on race carry

a danger of stigmatic harm. Unless they are reserved for remedial set-

tings, they may in fact promote notions of racial inferiority and lead to

a politics of racial hostility’’); id. at 734-735 (Kennedy, J., concurring in

part); id. at 737 (Scalia, J.. concurring); Wygant, 476 U.S. at 274 (Powell,

J., joined by Rehnquist, C.J., and O’Conner, J., plurality opinion). But

see Croson, 109 S.Ct. at 730 (Stevens, J., concurring in part) (“I therefore

do not agree with the premise ... that a governmental decision that

rests on a racial classification is never permissible except as a remedy

for a past wrong.’’), id. at 735 (Scalia, J., concurring) (“I do not agree

.. that, despite the Fourteenth Amendment, state and local govern-

ments may in some circumstances discriminate on the basis of race in

order (in a broad sense) to ameliorate the effects of past discrimination."’).

* Mississippi University for Women, 458 U.S. at 728 (1982) (O'Conner,

J., joined by Brennan, J., White, J., Marshall. J, and Stevens, J., majority

opinion). See also, Schlesigner v. Ballard, 419 U.S. 498 (1975).

* Mississippi University for Women, 458 U.S. at 728 (O’Conner, J.,

joined by Brennan, J., White, J., Marshall, J., and Stevens, J., majority

opinion). See also Califano v. Webster, 430 U.S. 313 (1977).

that innocent parties must share some burdens caused by

prior discrimination.” However, such “innocent parties” are

not required to sacrifice their own constitutional rights to

equal protection; the standard of review under the Equal

Protection Clause is not dependent on the race or gender

of those burdened or benefitted by a particular classifica-

tion.” Unfortunately, however, the Court has not reached

firm agreement upon the standard of equal protection re-

view applicable to either minority- or gender-based pref-

erence classifications.”

The recent decision in Croson, 109 S.Ct. 106, marks the

first time that a majority of the members of this Court

have announced that race- and ethnic-based classifications,

whether purportedly remedial or benign, must be subjected

to strict judicial scrutiny.” To survive strict scrutiny anal-

" E.g.. Fullilove, 448 U.S. at 484 (Burger, C.J., joined by White, J.,

and Powell, J., plurality opinion).

* Croson, 109 §.Ct. at 721 (O'Conner, J., plurality opinion); Wygant.

476 U.S. at 279-28- (O'Connor, J., concurring): Fullilove, 448 U.S. at

515 (Powell, J.. concurring); id. at n. 13 (Powell, J., concurring) (‘the

United States may not employ unconstitutional classifications. or base a

decision upon unconstitutional considerations, when it provides a benefit

to which a recipient is not legally entitled."); Mississippi University for

Women, 458 U.S. at 724 n. 9 (O'Connor, J., joined by Brennan, J., White,

J., Marshall, J.. and Stevens. J., majority opinion). See also, Califano v.

Goldfarb, 430 U.S. 199, 210-212 (1977) (opinion of Brennan, J.); Rich-

ardson v. Belcher, 404 U.S. 78, 81 (1971) (“To characterize an Act of

Congress as conferring a ‘public benefit’ does not, of course, immunize

it from scrutiny under the Fifth Amendment"’); Shelley v. Kraemer, 334

U.S. 1, 22 (1948); A. BickeL, THe Moraity Or Consent 133 (1975).

~ Croson, 109 §.Ct. at 743 (Marshall, J., joined by Brennan, J., and

Blackmun, J., dissenting) (“Agreement upon a means for applying the

Equal Protection Clause to an affirmative-action program has eluded this

Court every time the issue has come before us.’’).

~ Croson, 109 S.Ct. at 721 (O'Connor, J., joined by Rehnquist, C.J.,

and White, J.. plurality opinion) (“Absent searching judicial inquiry into

the justification for such race-based measures, there is simply no way

of determining what classifications are “benign” or “remedial’’ and what

classifications are in fact motivated by illegitimate notions of racial in-

feriority or simple racial politics. Indeed the purpose of strict scrutiny

is to ‘smoke out’ illegitimate uses of race ... "); id. at 734 (Kennedy,

ysis, (1) a racial or ethnic classification must be justified

by a “compelling governmental interest,” and (2) the means

chosen by the governmental unit to effectuate its purpose

must be “‘narrowly tailored.” Wygant, 476 U.S. at 274, 285;

Croson, 109 S.Ct. at 721-722 (quoting Wiesenfeld, 420 U.S.

at 648 (1975).*' Whereas, consensus largely has been reached

regarding the tests for race- and ethnic- based classifica-

J., concurring in part) (“I accept the less absolute rule ... that any

racial preference must face the most rigorous scrutiny by the courts.”’);

id. at 735 (Scalia, J., concurring) (“I agree ... that strict scrutiny must

be applied to all governmental classification by race, whether or not its

asserted purpose is ‘remedial’ or ‘benign.’ "’); id. at 752 (Marshall, J.,

joined by Brennan, J., and Blackmun. J., dissenting) (“Today for the

first time, a majority of this Court has adopted strict scrutiny as its

standard of “— Protection Clause review of race-conscious remedial

measures . This is an unwelcome development.’’).

"A plurality of the Court believe that, whereas, strict scrutiny is

warranted where racial classifications are “drawn on the presumption

that one race is inferior to another or because they put the weight of

government behind racial hatred and separatism.” racial classifications

drawn for remedial purposes (1) must serve important governmental

objectives, and (2) must be substantially related to achievement of those

objectives, in order to withstand constitutional scrutiny. Croson, 109 S.Ct.

at 743 (Marshall. J., joined by Brennan, J..and Blackmun, J., dissenting).

Justice Stevens employs another approach, couched in “rational basis”

terms:

In my own approach to these cases, I have always asked

myself whether I could find a rational basis for the classi-

fication at issue. The term “rational basis’ ... includes a

requirement that an impartial lawmaker could logically believe

that the classification would serve a legitimate public purpose

that transcends the harm to the members of the disadvan-

taged class .... In every equal protection case, we have to

ask certain basic questions. What class is harmed by the

legislation, and has it been subjected to a tradition of disfavor

by our laws? What is the characteristic of the disadvantaged

class that justifies the disparate treatment? In most cases the

answer to these questions will tell us whether the statute has

a “rational basis." The answers will result in the virtually

automatic invalidation of racial classifications and in the val-

idation of most economic classifications .. .

Id. at 732 (quoting Cleburne, 473 U.S. at 452-453 (1985)

(Stevens, J., concurring).

tions, however, this Court has been hesitant to establish a

definitive review standard for classifications based upon

gender.“ In Frontiero v. Richardson, 411 U.S. 677 (1973),

the Court used strict scrutiny to invalidate a federal statute

preventing a military servicewoman from claiming her

spouse as a “dependent’’ for the purposes of obtaining in-

creased quarters allowances and medical and dental bene-

fits. Jd. at 682 (Brennan, J., joined by Douglas, J., White,

J., and Marshall, J., plurality opinion).“ However, in sub-

sequent cases, the Court has declined to either apply strict

scrutiny review in gender cases or proclaim that strict scru-

tiny ever applies in such cases, instead applying heightened,

or intermediate scrutiny to all gender-based classifications.™

To survive intermediate scrutiny. the party seeking to up-

hold a law or policy which classifies individuals on the basis

of gender carries the burden of showing an “exceedingly

persuasive justification” for the classification.” This burden

may be met only by showing that (1) the classification serves

important governmental objectives, and (2) the discrimina-

tory means employed are substantially related to the

achievement of those objectives. Mississippi University for

Women, 458 U.S. at 724.”

The Court should apply identical equal protection review

standards to both the minority and female preference pol-

icies at issue in the instant case.“’ The rationale for applying

“In Mississippi University for Women, 458 U.S. at 724, the Court

stated ‘‘{blecause we conclude that the challenged statutory classification

is not substantially related to an important objective. we need not decide

whether classifications based upon gender are inherently suspect.”

~ See also, Kahn v. Shevin, 416 U.S. 351, 357 (1974) (Brennan. J..

joined by Marshall, J., dissenting).

“E.q.. Michael M., 450 U.S. 464 (1981); Mississippi University for

Women, 458 U.S. 718 (1982).

“ E.g.. Mississippi University for Women, 458 U.S. at 724; Kirchberg

v. Feenstra, 450 U.S. 455, 461 (1981).

“ This test is the same test as that advocated by the minority in Croson

for remedial] race-based classifications. See note 81, supra.

“ This will not be difficult for a minority of this Court who apply the

Second, rationales frequently used to justify intermediate

level scrutiny for gender-based classifications are fallacious

when applied to this case. For example, Justice Powell, in

Bakke, attempted to justify the separate standards in dicta,

are no rival groups which can claim that they too are en-

titled to preferential treatment.” Bakke, 438 U.S. at 303.

However, this is not true here, where females, and other

classified minorities must compete for FCC preferences:”

same two-pronged equal protection test to g. ider-based preferences and

race-based remedial measures. See note 86, supra. However. even those

Justices apparently would apply a stricter standard to the Commission's

policies upon a determination that the policies are not remedial in nature.

Id. In that event, the stricter standard should be applied to both clas-

sifications for the reasons stated herein.

“Eg. Parham v. Hughes, 441 U.S. 347, 354 (1979) (Stewart, J.

plurality opinion), Califano v. Webster, 430 U.S. 313 (1977), Schlesinger

\. Ballard, 419 U.S. 498 (1975), Kahn v. Sherin. 416 U.S. 351 (1974).

As the Court has stated, a legislature may “provide for the special

problems of women.” Wiesenfeld, 420 U.S. at 653 (1975).

~E.g., Rinaldi v. Yeager, 384 U.S. 305, 309 (1966).

~ In fact, comparative licensing cases often come down to an unseemly

squabble pitting females against minorities, see. e.g., Santee Cooper Broad-

casting Company of Hilton Head, Inc., 99 FCC 2d 781, 804-805 (Rev.

Bd. 1984\subsequent history omitted). or one racial minority against

another minority. ¢.g.. Religious Broadcasting Network. 3 FCC Red 4085

it can only be true where the classifications are based upon

factual distinctions between male and female biology and

makeup.

Third, the failure of this Court to invoke a uniform stand-

ard of equal protection review prior to commencing review

under the intermediate standard” could result in a scenario

in which the female preference is upheld and the minority

preferences are not. As Justice Powell observed with re-

spect to minority enhancements in Bakke, “the difficulties

entailed in varying the level of judicial review according to

a perceived ‘preferred’ status of a particular ... minority

are intractable ... [t}hose whose societal injury is thought

to exceed some arbitrary level of tolerability then would be

entitled to preferential classifications at the expense of in-

dividuals belonging to other groups.”’ 438 U.S. at 265. This

would be the result of a disposition of this case in which

females remain preferred but minorities do not.” Accord-

ingly, this Court should apply strict scrutiny review to both

This Court also should adopt strict scrutiny as the stand-

ard applicable to federal administrative agencies and the

judiciary.“ Deferential review already has been extended to

(Rev. Bd. 1983" Black and Hispanic applicants decry preference for Asians

seeking New Jersey TV license}; New Continental Broadcasting Co.. 88

FCC 2d 830, 844-845 (Rev. Bd. 1981 applicant seeks higher preference

tor Black ownership than for Hispanic ownership). The Commission even

had one case in which a party claimed a preference for “sexual orien-

tation.” Ronald Serenson. 4 FCC Red 6961 (ALJ 2989)

~ As has been the preferred course for this Court in the wake of

Stanton v. Stanton, 421 U.S. 7, 13 (1975).

= See note 90. supra

“ This Court's recent affirmative action cases do not set forth the

which es

equal protection standards applicable to the federal judiciary ( -

tablished the FCC's preference classifications), or federal administrative

Section 5 of the Fourteenth ‘Amendment. Fullilove, 448 U.S. at 472-92

certain Acts of Congress, pursuant to its unique Fourteenth

Amendment powers.” The application of strict scru.iny to

B86" Moreover, although the uassew tllctay” supteed ty

lated” to the achievement of their purposes, the lack of

any nexus between objective and remedy within the Com-

(Burger. C.J.. writing for the plurality). Wygant. and the more recent

present. Webster v. Reproductive Health Services, 109 S.Ct. 3040, 3064

(1989) (Scalia, J.. concurring in part).

~ Fullilove, 448 U.S. 448. See discussion, infra at pp. 47, 49.

* Wygent, 476 U.S. at 286 (O'Connor. J., concurring).

—_—_—

mission's preference scheme subverts any conclusion that

the FCC’s policies have even a rational basis. Accordingly,

the Commission’s preferences are hard-pressed for support

under any of the considerations normally deemed relevant

under the Fifth and Fourteenth Amendments.

1. The FCC’s Race-, Ethnic- and Gender-Based

Preference Classifications Do Not Further A

Compelling Or Important Governmental Interest.

The Federal Government has a compelling or important

interest in remedying past discrimination and its lingering

effects. E.g., Wygant 476 U.S. at 286; Mississippi Univer-

sity for Women, 458 U.S. at 728. Several members of the

Court hold that only remedial purposes justify the use of

race- and ethnic-based preference classifications.” Addition-

ally, although its application remains untested, the Court

has suggested that a state interest in the promotion of

racial diversity is sufficiently compelling to support use of

racial considerations within the context of higher education.

Bakke, 438 U.S. at 311-15; Wygant, 476 U.S. at 286. And,

Justice O’Connor offerred in Wygant that additional inter-

ests might be accepted:

[Njothing the Court has said today necessarily fore-

closes the possibility that the Court will find other

governmental interests which have been relied upon in

the lower courts but which have not been passed on

here to be sufficiently “important” or “compelling” to

sustain the use of affirmative action policies. /d.

The FCC's program diversity rationale, however, should not

be so sanctioned by this Court.

~ See discussion at note 74, supra. Justice Stevens, however, wor'd

permit non-remedial race-based classifications under certain circumstan-

ces, whereas Justice Scalia disfavors all classifications based on race,

regardless of benign or remedial purpose. /d.

sential to the welfare of the public.’’ West Michigan Broad-

casting Co. v. FCC, 735 F.2d 601, 614 (D.C. Cir. 1984),

cert. denied, 470 U.S. 1027 (1985) (quoting 1965 Policy

Statement, 1 FCC 2d at 394 n. G. Sho pretwenets were

ership of stations by significant groups that are substantially

underrepresented . " FCC Brief in Winter Park at 47

(quoted in Winter Park, 873 F.2d at 357 (Williams, J.,

dissenting). (Pet. App. 19a). The Commission has empha-

sized that its pursuit of “program diversity,” is the under-

Program diversity would not appear to be an important

or compelling governmental interest so as to justify dis-

tinctions which are repugnant to established equal protec-

tion principles. The concept itself is amorphous, undefined

even by its proponent. As Judge Williams pointed out, “[nJo

party here has offered a definition of minority programming

that is empirically verifiable ... .” 873 F.2d at 358. (Pet.

App. 22a). Ergo, the lack of a clear definition of program

diversity hampers any conclusion that its accomplishment

is “important” or “compelling.”

To the extent that program diversity is definable, the

acknowledged non-remedial nature of the goal directly re-

* See Winter Park, 873 F.2d at 356 (Pet. App. 17a-18a); FCC Briers

in Winter Park at 30 (“The FCC's goal in implementing the preference

policy, however, has not been to remedy prior discrimination against

minorities or to provide remedial benefits.”); FCC Steele Brief at 18

(S.J.A. 81) (“There has never been a finding, nor

even an allegation. that the FCC engaged in prior discrimination against

racial minorities or women in its licensing process."’) (S.J.A. 81).

sees ——

sults in stigmatic harm to the groups which “benefit.""* As

the origins of the concept reveal, program diversity is tan-

tionale is premised on the idea, first presented in TV 9,

495 F.2d at 938, and Garrett, 513 F.2d at 1063, that di-

versity of station ownership will bring about diversity of

programming. See Winter Park, 873 F.2d at 363 (Williams,

J., dissenting) (Pet. App. 32a \sa). The underlying assump-

tion is the “reasonable expectauon” that minority or female

owners will program their new broadcast stations in some

sort of minority or female manner.” Under the Commis-

sion’s theory, race, ethnicity and gender not only determine

what type of programming station owners want to provide,

but also what viewers and listeners want to hear. Winter

Park, 873 F.2d at 358 (Pet. App. 21a). Such “sterevtypical

analysis ... is the hallmark of violations of the Equal Pro-

tection Clause.” Croson, 109 S.Ct. at 732 (Stevens, J., con-

curring in part). Justice Powell warned in Bakke, that

“{pjreferential programs may only reinforce common ster-

eotypes holding that certain groups are unable to achieve

success without special protection based on a factor having

no relation to individual worth.” 438 U.S. at 298. The Com-

mission's preferences, based entirely on what are deemed

predictable traits inherent in minority and female person-

alities, render this concern paramount.'” The perpetuation

of stereotypes in the name of program diversity cannot be

a compelling or important governmental interest.

~ See Croson. 109 S.Ct. at 721 (O'Connor. J.. plurality opinion) (“Clas-

sifications based on race carry a danger of stigmatic harm. Unless they

are strictly reserved for remedial settings. they may in fact promote

notions of racial inferiortity and lead to a politics of racial hostility.)

TV 9, 495 F.2d at 938 (“Reasonable expectation, not advance dem-

onstration, is a basis for merit to be accorded relevant factors.’’).

Other members of this Court have expressed similar concerns. See

Croson, 109 S.Ct. at 745 (Marshall. J., joined by Brennan, J. and Black-

mun. J.. dissenting) (“we have required that government adduce evidence

that, taken as a whole, is sufficient to support its claimed interest and

to dispel the natural concern that it acted out of mere ‘paternalistic

stereotyping.’ not on a careful consideration of modern social condi-

tions. ’).

104 FCC 2d 357 (1986), aff'd, Action for Children’s Tele-

vision v. FCC, 821 F.2d 741 (D.C. Cir. 1987). Accordingly,

even were program diversity a valid governmental interest,

it could not be “important” or “compelling” because the

entity advancing the interest believes it already has been,

and is being, achieved.

b. The Bakke Diversity Rationale Should Not Be

Extended Beyond The Academic Context.

The FCC's adoption of the program diversity rationale

84 FCC 2d 968, reconsideration denied, 87 FCC 2d 797 (1981), aff'd

im part and rev'd in part. Office of Communication of the United Church

of Christ v. FCC, 707 F.2d 1413 (D.C. Cir. 1983).

The lower court, basing its constitutional determination al-

most entirely upon its earlier holding in West Michigan, 735

F.2d 601, did not undertake an independent review of

the program diversity goal. Instead, the Winter Park ma-

jority relied upon West Michigan's conclusion that because

consideration of minority status was but “one factor in a

competitive multi-factor selection system designed to obtain

a diverse mix of broadcasters,” 735 F.2d at 613, the policies

were validated under Justice Powell's hypothetical use of

race as a factor in educational admissions for the

of obtaining diverse student bodies. Winter Park, 873 F.2d

at 356 (Pet. App. 17a-18a). Both the West Michigan and

Winter Park courts treated the FCC's diversity goal as

virtually identical to the objective embraced by Justice Pow-

ell in Bakke.

The program diversity rationale embraced by the Com-

mission and the academic diversity objective outlined by

Justice Powell in Bakke would not appear interchangeable.

The differing contexts from which the two goals arise would

seem to render meaningful comparison impossible. For ex-

ample, Justice Powell found academic diversity tied to the

notion of academic freedom. Bakke, 438 U.S. at 313. A

university's First Amendment freedom to select and create

a diverse student body is important for exposing students

to the “atmosphere of ‘speculation, experiment and crea-

tion’. . . essential to the quality of higher education.” /d.

at 323. This goal would not seem to have a counterpart in

the Commission's race-, ethnic- and gender-based preference

A second flaw in comparing the FCC’s preference awards

with the multi-factored selection system theoretically ap-

proved in Bakke for university admissions is that the FCC

preference factors. unlike those encouraged by Justice Pow-

ell, are dispositive of the outcome in most comparative

* Winter Park, 873 F 2d at 349 (Pet. App. 2a) (Edwards. J.. majority

opinion) (“{t}his case is clearly controlled by West Michigan.”).

See discussion supra. at pp. 21-25

A significant distinction between the academic diversity

rationale and the Commission's program diversity goal is

Judge Williams noted, “ethnic diversity in the classroo

enables those present to see individual members of ethnic

groups as they are. Far from depending on some link be-

tween race and conduct, it is a potent device against ethnic

stereotyping.’’ 873 F.2d at 357. (Pet. App. 21a). By con-

trast, the Commission’s policies not only promote stereo-

types, but also segregation; the preferences assume greater

weight under the best practicable service criterion as mi-

nority or female participation in applicants increases. The

policies thus encourage minority or female applicants to join

forces, lest non-minority principals weaken their compara-

tive standings. The result is like a segregation of the air-

waves in which discrete groups of minority broadcasters

are prompted to cling together to broadcast the type of

programming expected by the Commission.

Numerous contrasts render acceptance of the Commis-

sion’s preference classifications under the Bakke diversity

rationale difficult, if not impossible. The extension of this

rationale to broadcasting would wreak havoc on affirmative

action programs which this Court and others have recog-

nized as valid, as various minority groups clamor for pref-

erences based upon arguments that one group or another

has as muchor more impact upon diversity as the group to

whom preferential treatment is afforded.

2. The Commission’s Preference Policies Are Not

Sufficiently Tailored To The Accomplishment Of

Program Diversity To Pass Constitutional Mus-

ter.

Assuming, arguendo, that the Commission’s program di-

versity goal is a compelling or important governmental in-

terest, the strict scrutiny standard to which a majority of

this Court adheres requires that the means chosen be “nar-

rowly tailored” to accomplishment of the goal. Wygant, 476

U.S. at 274." Application of this prong of strict or height-

ened scrutiny to the Commission’s preferences leads to the

conclusion that the Commission’s minority and female own-

ership promotion policies are not rationally-related, much

less narrowly tailored, to the fulfillment of its program

diversity goal. Neither do they work, nor do they have any

stopping point.

The burden is on the Commission to prove that its pref-

erence policies are the “most exact’ means to the end of

program diversity. E.g., Bakke, 438 U.S. at 320. Thus, the

Commission's preferences must fail, not only if their ra-

tionale is demonstrably false, but also if it is not de-

monstrably true.'’ The burden also is on the Commission

to sustain its gender preference with an “exceedingly per-

suasive”’ justification. Mississippi University for Women, 458

U.S. at 724; Kirchberg, 450 U.S. at 461.

The FCC has not satisfied this burden. First, the Com-

mission has declared that program diversity already exists

or is assured by the marketplace. Thus, an indirect attempt

to promote such diversity through ownership preferences

would appear unnecessary for, or unrelated to, its accom-

plishment. Second, the Commission's concession that no re-

cord demonstrates that use of “a race- or gender-based

preference scheme to increase minority and female own-

ership is essential to achieving that objective,’ FCC Steele

Brief at 19. (S.J.A. 81), renders inconceivable the notion

that the policies are narrowly tailored; indeed they are with-

out rational basis. Third, the Commission has admitted it

has no evidence “‘on which to base an assumption that a

nexus exists between an owner's race or gender and pro-

* The heightened scrutiny applied to gender-based classifications and

the ‘strict scrutiny” formula of Justices Marshall, Brennan and Blackmun

require that any classifications used be “substantially related” to the

achievement of the proffered governmental objective.

ws E.g., United States v. Paradise, 480 U.S. 149 (1987) (Stevens, J.,

concurring) (“the governmental decisionmaker who would make race-

conscious decisions must overcome a strong presumption against them.”’).

gram diversity.’’ FCC Steele Brief at 19. (S.J.A. 81). This

destroys any claim of narrow tailoring; the Commission is

uncertain even of the logic underlying its preference awards.

Fourth, “(t}he biggest hurdle to minority ownership is se-

curing the financing ... .”” St. Louis City Communications,

Inc., 4 FCC Red 5262 (1989). This barrier cannot be over-

come by the award of preferences.’” Fifth, even assuming

that the Commission’s stereotypes regarding minority and

female programming proclivities are true, it is questionable

whether program diversity is promoted by the rote appli-

cation of preference awards for minority and female own-

ership wherever new frequencies are opened to application;

absent analysis of the individual community and its need

for a certain type of voice,’ the Commission's policies might

result in heavy concentrations of identical perspectives in

a small region, rather than in nation-wide, or even local

diversity. Finally, the FCC’s preferentiai treatment policies

cannot be narrowly tailored because there is no evidence

that the FCC has considered race-neutral means to foster

its program diversity objective. See Croson, 109 S.Ct. at

728 (O'Connor, J., joined by Rehnquist, C.J., White, J.,

Stevens, J. and Kennedy, J., majority opinion).

Whatever narrow tailoring was present despite these

flaws has been destroyed by other policies which undercut

‘““ The Commission has indicated its concern relative to minority fi-

nancing. See Minority Ownership of Broadcast Facilities. 69 FCC 2d

1591 (1978). It has not, however, adopted lower financial qualifications

standards for minority applicants. See e.g. Bison City TV 49 Limited

Partnership. 91 FCC 2d 26, 30 n. 5 (Rev. Bd. 1982).

““ Prior to TV 9, the Commission seems to have operated very suc-

cessfully in much this way. See e.g., La Fiesta Broadcasting Co., 6 FCC

2d 65, 67 (Rev. Bd. 1966) (awarding license to applicant who proposed

only Spanish-language broadcasting for Lubbock, Texas area). Pursuant

to its earlier race-neutral policy, the FCC allowed an applicant to show

that its proposed programming addressed the special needs of minorities

in the relevant area. See Salter Broadcasting Co., 8 FCC 2d 1036, 1039-

1040 (Rev. Bd. 1967). Non-minority applicants were permitted to make

such a showing. See Herbert Muschel, 33 FCC 37 (1962). The overall

policy was more sensitive both to minority broadcasting interests and to

the individual qualities of non-minority applicants than the stark, ethnic-

and gender-based preferences the Commission now employs.

the FCC’s most basic assumption: that awarding a broad-

cast license to a minority- or female-controlled applicant

results in minority or female ownership. As discussed supra

at p. 22, the limited partnership device and other passive

ownership structures shield certain principals from com-

parative consideration, even where they are financially re-

sponsible for the applicant and proposed station.

Accordingly, what appears an award to a minority or female

in a comparative proceeding may actually be an award to

a “limited partnership” comprised of 100 white males with

one minority or female “general partner.” It is doubtful

that under such circumstances the minority or female will

have discretion over programming decisions. Moreover, the

Commission’s rules permit applicants to sell construction

permits immediately upon prevailing in a comparative pro-

ceeding, provided station operations have not yet com-

menced. James U. Steele, 4 FCC Red at 4704 n. 1. Once

an award is made there is no assurance that the minority

or female chosen will retain the permit, rather than sell to

a non-minority group member, or a male.

The Commission's race-, ethnic- and gender-based pref-

erence classifications are loosely-fitted, at best, to the ob-

jective of program diversity. Consequently, they violate the

equal protection principles embodied in the Due Process

Clause of the Fifth Amendment.

3. Fullilove Does Not Allay The Necessity Of

Reaching Constitutional Determination On This

Neither Winter Park nor West Michigan undertook a

complete review of the Commission’s minority and female

preference policies under the equal protection principles set

forth hereinabove. Apparently, the reason for this was their

conclusion, based upon Fullilove, that “any doubt concern-

ing the constitutionality of the FCC’s consideration of mi-

nority status was ended by Congress’ approval of the

Commission’s goals and means.” West Michigan, 735 F.2d

at 615; Winter Park, 873 F.2d at 355. (Pet. App. 15a). For

the West Michigan court, this “approval” was Congress’

passage of § 115 of the Communications Amendments Act

of 1982,'" designed to facilitate the development of a lottery

as an alternative to the Commission’s comparative process.

The legislation required that preferences for minority ap-

plicants be incorporated into any random selection licensing

scheme — by the Commission. Id. The Winter Park

a additional acquiescence in the 1988 and 1989

ppropriations Acts. Winter Park, 873 F.2d at 355. (Pet.

App. 14a). However, the Winter Park majority did not ana-

lyze the legislation, deferring instead to the West Michigan

panel S statement that, “Congress must be understood to

have viewed the sort of enhancement used here as a valid

remedial measure." Winter Park, 873 F.2d at 353 (quoting

West Michigan, 735 F.2d at 614).

Metro disputes West Michigan’ j

the 1982 lottery legislation, Congress trunmnetrined at

FCC's race-, ethnic- and gender-based preference scheme

into a valid race-based remedial measure. At vest, the West

Michigan court’s speculation in this regard was an educated

guess; more accurate, perhaps, is Judge Williams’ conclusion

that [t]he portion of West Michigan addressing remedial

concerns is ... dictum.” 873 F.2d at 365 (Pet. App. 38a)

The FCC has tendered no remedial rationale for its policies

= be courts — a a Commission action on the

reasoning which it has not

Chenery Corp., 318 U.S. 80, 88 co ciate

Even if the 1982 lottery legislation is an indicia of

congressional intent to employ remedial measures in the

broadcast industry,'” the necessity for equal protection anal-

ysis remains. This Court has held that “the mere recitation

‘ Public Law 97-259, 96 Stat. 1087 Sept. 13 i

' ; . 13, 1982 (codified 7

U.S.C. §§ 30%iN3KA) - (4KA)) (Pet. App. 102a). 09

‘~ Congress based its lottery preference requiremen findings

oe . ” + as

underrepresentation is Ge feninss endin, atts @ Oameneten

ethnic discrimination.” West Michigan, 735 F.2d at 614 (quoting H.R.

REP. NO. 97-765, 97th Cong., 2d Sess. 43. reprinted j

CONG. & AD. NEWS 2287), ) pees & BES US. COSE

of a benign, compensatory purpose is not an automatic shield

which protects against any inquiry into the actual purposes

underlying a statutory scheme.” Croson, 109 S.Ct. at 722

(O’Connor, J., joined by Rehnquist, C.J., White, J., and

Kennedy, J, plurality opinion) (quoting Wiesenfeld, 420 U.S.

at 648). “Absent searching judicial inquiry into the justifi-

cation for such race-based measures, there is simply no way

of determining what classifications are ‘benign’ or ‘remedial’

and what classifications are in fact motivated by illegitimate

notions of racial inferiority or simple racial politics.” Jd. at

721. Both the factual basis for enactment of the classifi-

cation and the nexus between its scope and the basis should

be examined. Jd. In the case of the lottery legislation, such

analysis is crucial to any determination that (1) Congress

intended for the FCC to apply race- and ethnic-based re-

medial measures in its comparative hearing context, or that

(2) Congress identified past discrimination with sufficient

particularity to justify the imposition of race- and ethnic-

based classifications. West Michigan's reliance on findings

of “underrepresentation,”” without more, to justify the Com-

mission’s adoption of constitutionally disfavored classifica-

tions, thus was premature.’’”

No evidence indicates that Congress intended its 1982

lottery legislation to receive substantive application in the

comparative hearing context. Thus, the FCC’s expansion of

its court-ordered comparative preferences for black own-

ership and participation to other minority groups listed in

the lottery statute,''’ must be perceived as an independent

act of the Commission, warranting review under the stand-

ard applicable to federal administrative agencies, which, as

Metro has noted, should be strict scrutiny.

” See Croson, 109 S.Ct. at 724-725 (O'Connor, J., plurality opimion)

(“{t}he district court .. . relied on the highly conclusionary statement .. .

that there was racial discrimination in the construction industry ...

[tJhese statements are of little probative value ... when a legislative

body chooses to employ a suspect classification, it cannot rest upon a

generalized assertion as to the classification's relevance to its goals.”).

' See discussion at note 18, supra..

Wygant, 476 U.S. at 266 (O’Connor. J. concurring).

no such basis was before the Commission is eviderced bs

its consistent refusal to claim any purpose other than pro-

gram diversity for its preferences.

" Croson 109 S.Ct at 719 (O'Connor, J.. plurality opinion).

‘ See Fullilove, 448 U.S. at 483 (Burger. C.J plurality opini ,

2. . °s opinion) (“in

no organ of government, state or federal, does there repose a more

- = also Mayor v. Educational Equality League, 415 US. 605

*~ .

—e—CSSCC

to eradicate. Jd. at 722; Bakke, 438 U.S. at 307. “For the

tying past discri ion to

ings.

« Continuing Approprmations Act for Fiscal Year 1988 and for Other

Purposes, Public Law No. 100-202, 101 Stat. 1329-31 (1987).

. . 987) (S.J.A. 55)

See S. Rep. No. 100-182, 100th Cong., Ist Sess. (1 JA

(“the Committee also instructs the Commission to rcsolve, within 60

Pursuant to Croson, the Fourteenth Amendment's § 5

conferral of power upon Congress to enact remedial leg-

islation is an explicit constraint upon the power of States.

, ion compo-

nent of the Due Process Clause of the Fifth Amendment.

Fullilove, 448 U.S. at 497 (Powell, J., concurring).

Whereas, the enactements are buried in appropriations

measures, rather than constituting a “considered decision

‘See Department of Commerce, Justice and State, the Judimary and

Related Agencies Appropriations Act of 1989, Public Law 100-457. 102

Stat. 2216-17 (1988), Departments of Commerce. Justice and State. the

Judimary and Related Agencies Appropriations Act of 1990, Public Law

101-162, 103 Stat. 988 (1989).

* See discussion in Winter Park. 873 F.2d at 363-65 (Williams J.

dissenting)

——

they “have the limited and specific purpose of providing

funds for authorized programs.”’ TVA v. Hill, 437 U.S. 153,

190 (1978). “When voting on appropriations measures, leg-

islators are entitled to operate under the assumption that

the funds will be devoted to purposes which are lawful, and

not for any purpose forbidden.” Jd. If this assumption is

set pected, weeld lend to the “chewsé sendt of v0

quiring Members to review exhaustively the background of

every authorization before voting on an appropriation.” Jd.

Such a burden would have been particularly onorous with

respect to the 1988 Appropriations Act, in which legislators

had only three hours to review its 43 pounds and 3,286

pages of documentation. President's State of the Union Ad-

Neither Congress nor a State can validate a law that

denies the rights of equal protection. Califano v. Goldfarb,

430 U.S. 199, 210 (1977); Williams v. Rhodes, 393 U.S. 23,

29 (1968). And, a statute apparently governing a dispute

“cannot be applied by judges, consistently with their obli-

gations under the Supremacy Clause, when such an appli-

cation of the statute would conflict with the Constitution.’

Marbury v. Madison, 2 L.Ed 60 (1803); Younger v. Harris,

401 U.S. 37 (1971).

CONCLUSION

For the foregoing reasons, the decision and judgment of

the court of appeals should be reversed, the Commission's

minority and female preference policies declared unconsti-

tutional, and the construction permit for Channel 65 at

Orlando, Florida awarded to Metro.

February, 1990

Respectfully submitted,

Joun H. MIpien, Jr.*

Grecory H. Guittor

3238 Prospect Street, N.W.

Washing*on, D.C. 20007-3215

(202) 333 1500

Attorneys for Petitioner.

Metro Broadcasting, Inc.

* Counsel of Record

APPENDIX

APPENDIX TO BRIEF

The applicable provisions of the Departments of Com-

merce, Justice and State, the Judiciary and Related Agen-

cies Appropriations Act, 1990, Public Law 101-162, 103

Stat. 988 (1989):

For .necessary expenses of the Federal Communi-

cations Commission ... Provided, That none of the

under 26 U.S.C. 1071, to expand minority and women

ownership of broadcasting licenses, including those es-

tablished in the Statement of Policy on Minority Own-

ership of Broadcasting Facilities, 68 F.C.C. 2d 979

and 69 F.C.C. 2d 1591, as amended 52 R.R. 2d 1313

(1982) and Mid-Florida Television Corp., 60 F.C.C. 2d

607 (Rev. Bd. 1978), which were effective prior to

September 12, 1986, other than to close MM Docket

86-484 with a reinstatement of prior policy and a lift-

ing of suspension of any sales, licenses. applications,

or proceedings, which were suspended pending the

conclusion of the inquiry... .

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.