# Petitioners Brief — Metro Broadcasting, Inc. v. FCC > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0682%3A07 ## Record - **Collection:** Supreme Court brief - **Document type:** Petitioners Brief - **Published:** January 1, 1990 - **Citation:** 497 U.S. 547 ## Text 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, v. 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 a PRESS OF BYRON 8S. ADAMS, WASHINGTON, D.C. (202) 347-8203 a 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. ii 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) 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 23 Zozaga, Julia S., 4 FCC Red 6271 (ALJ 1989) .... 24 Constitution Constitution of the United States of America Pam AReROEEE cence passim Fourteenth Amendment ...................cccssceseeeseeees passim Statutes Communications Act of 1934, as amended, 47 U.S.C. RE) a 4 Communications Act of 1934, as amended, 47 U.S.C. Ro, ae 4 Communications Act of 1934, as amended, 47 U.S.C. Ro 0 ae 4 Communications Act of 1934, as amended, 47 U.S.C. Ro) ee 3 Communications Act of 1934, as amended, 47 U.S.C. § 309 iX3\cKii), P.L. 97-259, 96 Stat. 1087 Pa 22 Communications Act of 1934, as amended, 47 U.S.C. Lit ga 4 Communications Amendments Act of 1982, Public Law 97-259, 96 Stat. 1087, 13, 1982, 47 Sept. U.S.C. §§ 309(03KA) - (4A) coeeccceccssreecseesssceeoe passim Continui a Act for Fiscal Year 1988 and Other Purposes, Public Law No. 100- 202, 101 Stat. 1329-31 (1987) ..............ccccceeeese passim pes Ss alee ane Si, SS wiary and Related Agencies > “or Act of 1989, Public Law 100-459, 102 ; 2216-17 (1988) cossnsennessssnsnusonapnsssiaiiensiveiiaiieeni ids passim Departments of Commerce, Justice and State, the Judiciary and Related Agencies Appropriations Act of 1900, Public Law 101-162, 1 tat. 988 CRGIEE) .1.c-cccssscsscesensesssasennssenenennsianenennn 3,49 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, a ceilachinuinisbittihensinissntcnsvetsenenssetnecsseccessecessoeees gaan - a TS H.R. Rep. No. 97-765, 97th Co , 2d Session 43, _ ted in 1982 U.S. CODE CONG. & I snsnesbessccnceassessee 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, Tr ncennscinnassenescanacsonscoooscesocees bighepnaged (1978) eiieaatiinidnsandenniteteccestecseseteccszccecoocrocecceeseoes Ta csssenaneenss 48 17 50 | 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. 2 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. © Td. « 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 ee 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. 10 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). 11 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). 12 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). 13 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). 14 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. 15 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). 16 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). 17 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). 18 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). © il Sate 19 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. 20 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 21 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. 22 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, 24 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 25 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. © Frontiero v. Richardson, 411 U.S. 677, 686 (1973) (Brennan, J.. joined by Douglas, J.. White, J.. and Marshall, J.) 27 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). 28 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 29 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). 30 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, 31 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). 32 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 34 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). —_—_— 36 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). 40 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 41 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- 42 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.”’). 43 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. 44 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’ 45 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 46 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 45 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) —— 50 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- dress, 24 Wreexty Comp. Pres. ©oc. 87 (Jan. 25, 1988). 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 a 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 la 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... . --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0682%3A07. Public record. Not legal advice.