Respondents Brief — Metro Broadcasting, Inc. v. FCC

te oe

:

Twa

QUESTION PRESENTED

Whether the Commission's congressionally mandated

consideration of broadcast applicants minority status as

one enhancing factor in comparative licensing proceed-

ings is consistent with the equal protection component of

the Fifth Amendment?

TABLE OF CONTENTS

STATEMENT OF THE CASE ....................

The Commission Proceeding ................

Subsequent Proceedings .....................

The Court of Appeals Decision ..............

Development Of The Commission's Minority

ee

The Commission and the Courts ..........

Congressional Action ....................

SUMMARY OF ARGUMENT .....................

ET EE ae Ga Scans eessccsccocesccecceese

I. THE MINORITY ENHANCEMENT POLICY IS

A CONSTITUTIONALLY LEGITIMATE EXER-

CISE OF THE COMMISSION'S JUDICIALLY

APPROVED STATUTORY MANDATE TO AD-

VANCE THE COLLECTIVE FIRST AMEND-

MENT RIGHT OF THE VIEWING AND LIS-

TENING PUBLIC TO PROGRAMING FROM

oe s.r

A.

The Constitutional Propriety Of The

Minority Enhancement Policy Must Be

Assessed In Light Of The Origin And

Purpose Of Commission Regulation .......

The Judgment That The Minority Enhance-

ment Policy Is Essential To Promotion Of

The Commission's Diversity Objective Was

Well Within The Bounds Of Commission

EE ES

. The Minority Enhancement Policy

Addresses An Imbalance In Industry Own-

ership Patterns By Assigning Minor Addi-

tional Credit For The Greater Service To

The Public Potentially Available From

Minority Owner Managers ...............

14

16

16

16

17

19

, = 7— ~ er oe a, A i Ke ee ee ee ee ™ ——?” ba - +

D. Extirpation Of The Minority Enhancement Cases—Continued Page

Would Require Radical Reordering Of

Settled Constitutional Principles Governing FC.C. tv. Pottsville Broadcasting Co., 39 US. DA

Ce I ee he Se 93 (1940) Cee eee reser eeseeseseesereseeeeeseseeese 17, 24, 28

Il THE MINORITY ENHANCEMENT POLICY | FC.C. v. WNCN Listeners Guild, 450 U.S. 582 (1951)... 1s, 24

SATISFIES THE DEMANDS OF PREVAILING Fullilove v. Klutznick, 448 U.S. 448 (1980) 2.2.0.0... 7, passim

EQUAL PROTECTION SCRUTINY WHETHER Ci 0)

CONSIDERED IN LIGHT OF ITS UNIQUE Garrett v. FC.C., 513 _ 1056 (D.C. Cir. 1975) ...... .

FIRST AMENDMENT IMPERATIVE OR ITS NAACP wv. F-PC., 425 U.S. 662 (1976) ..... seeeeeees i

MORE TRADITIONAL REMEDIAL PURPOSE 26 National Broadcasting Co. v. United States,-319 U.S.

A. The Objectives Of The Minority Enhance- 190 (1943) Tee eee ee ee eee ee 17, 22

ment Policy Are Within the Power of National Treasury Employees Union v. Devine, 733

SRA Soe 28 ED «2. ons pcnhocat)$eeseenes 28

B. The Minority Enhancement Policy Is Nar- Red Lion Broadcasting Co. v. FC.C., 395 US. 367

rowly Tailored To Achieve Its Objectives 30) St Lenadh dua deeakéndsccessecesteces caceeee 19, 23

C. The Minority Enl t Policy Im pew am of California v. Bakke, 435 |

he Nat teal tial Burden On * rity S. RULE LALA LAL Eee i, passim

AGUS 60 ci chi ds nancies ecdidecdivece: 31 Swann v. Charlotte-Mecklenburg Board of Education,

SE ED tac cedaduasddncbcondccescosees 17

CACUEMEEEEE coddavecdenbachuvéiesdsddacechewas 32 TV 9, Inc. v. FC.C., 495 F.2d 929 (DC. Cir. 1973),

cert. denied, 419 U.S. 986 (1984) ..........66-045. 10

United States v. Associated Press, 52 F. Supp. 362

TABLE OF AUTHORITIES (S.D.N.Y.), affirmed, 326 U.S. 1 (1945) ............ 25

Page United States v. Paradise, 480 U.S. 149 (1987) ........ 31

— West Michigan Broadcasting Co. v. FC.C., 735 F.2d

Bena | 601 (DC. Cir. 1984), cert. denied, 470 US. 1027

Ashbacker Radio Corp. v. F-C.C. 326 U.S. 327 (1945) .. ) ninelad ed ahuducasedeneneecaqses? a oo Or

Associated Press v. United States, 326 U.S. 1 (1944) ... 26 Wygant v. Jackson Board of Education, 476 U.S. 267

CBS, Inc. v. F.C.C., 453 US. 307 (1981) ............. 25 (RIED cn vcccccccteddcaccosscccccceccceces 8, 22, 29, 32

City of Richmond v. J.A. Croson Co., 109 S. Ct. 706 |

(1989) COSC CCHS EEE SEE EEEHEHHES HEHEHE SESE SESEEES ‘, 21 Constitutional and Statutory Provisions

Columbia Broadcasting System, Inc. v. Democratic US. Const.:

National Committee, 412 US. 94 (1973) ........... 23 ” Art. L§8 i 28

“Nene ee — Access v. FCC., 737 F.2d : | Communications Act of 1934, 47 US.C. § 151 et seq.

gor try bag Decne Be gabon: gat phates tt tee ' | iy EEE RR 4

FCC. v. National Citizens Committee for Broadcast- ' dion cek canned henes 6690000000 ¢ i)

* . § ree ee 2, 18, 19, 24 | TT 66 ain6 baideud Ubon boeoetebeoneste i)

iv y

Constitutional and Statutory Provisions—Continued Page

EE ied bnncbbbtcdedonsstetcdecdss i)

ie EE ctincn int sancinccsccnseserdl y

et EE netttinen se ho peaks tegauesec 12, 27

Communications Amendments Act of 1982, Pub. L.

No. 97-259, 96 Stat. 1087 (1982) .............0005- 12, 26

Communications Amendments Act of 1981, Pub. L.

No. 97-35, 95 Stat. 357 (1081)... ww cece eee eees 12

Continuing Appropriations Act for Fiscal Year 1988,

Pub. L. No. 100-202, 101 Stat. 1329 (1987) ....... 5, 13, 27, 29

Departments of Commerce, Justice and State, the

Judiciary and Related Agencies Appropriations Act

of 1990, Pub. L. No. 101-162, 103 Stat. 988 (1989) ... 5, 13, 27

Departments of Commerce, Justice and State, the

Judiciary and Related Agencies Appropriations Act

of 1989, Pub. L. No. 100-457, 102 Stat. 2216 (1988) .. 5, 13, 27

~~

Miscellaneous

Ascertainment of Community Problems by Broadcast

Applicants, 57 F-C.C.2d 418 (1976) ............... 10, 30

Availability of FM Broadcast Assignments, 101

F.C.C.2d 638 (1985), reconsideration granted in part

and denied in part, 59 Rad. Reg.2d (P&F) 1221

(1986), affirmed sub. nom. National Black Media

Coalition v. F-C.C., 822 F.2d 277 (2d. Cir. 1987) .... w”

Congressional Research Service, Minority Broadcast

Station Ownership and Broadcast Programming: Is

ee et

Debra D. Carrigan, 104 F-C.C.2d 826 (1986) ......... 3

Federal Communications Commission's Minority Own-

ership Task Force, Minority Ownership Report

GPU. cn decenccccancocnsessesacdouscascosesece 11, 30

H.R. Conf. Rep. No. 765, 97th Cong., 2d Sess.

SIRE. cede besevadaccesaesancsanesoiavceteeses 13, 27, 29

Hearings on H.R. 2763 Before a Subcomm. of the

Senate Comm. on Appropriations, 100th Cong., Ist

rrr ee 14

a Oe ee mL ee

Miscellaneous— Continued

Low Power Television Service, 5i Rad. Reg.2d (P&F)

476 (1982), reconsideration granted in part and

denied in part, 53 Rad. Reg.2d (P&F) 1267 (1983) ..

Mid-Florida Television Corp., 69 F-C.C.2d 607 (Rev.

Bd. 1978), set aside on other grounds, 87 F(C.C.2d

SE ind siinh benid MEd bane Be anes age ne 1

Minority Owned Broadcast Stations: Hearings on H.R.

5373 Before the Subcomm. on Telecommunications,

Consumer Protection, and Finance of the House

Comm. on Energy and Commerce, 99th Cong., 2d

Rg Ee RE ie SE a

Minority Ownership of Broadcast Stations: Hearing:

Before the Subcomm. on Communications of the

Senate Comm. on Commerce, Science and Trans-

portation, l0Ist Cong., Ist Sess. (1987) ............

Minority Ownership of Broadcasting Facilities, 65

PI “ot obeoetethelecedéesaccecces

Minority Participation in the Media: Hearings on H.R.

1155 Before the Subcomm. on Telecommunications,

Consumer Protection, and Finance of the House

Comm. on Energy and Commerce, 98th Cong., Ist

"CR ED betadieatthenancathincnst ecteeess es

New Continental Broadcasting Company, 88 F.C.C.2d

830 (Rev. Bd. 1981), reconsideration denied, 89

F.C.C.2d 631 (1982), reopened and remanded on

other grounds, 98 F.C.C.2d 601 (1984) ............

Nondiscrimination in Employment Practices of Broad-

cast Licensees, 6) FC.C.2d 226 (1976) ............

Nondiscrimination in Employment Practices of Broad-

cast Licensees, 5A F.C.C.2d 354 (1975) ............

Nondiscrimination in Employment Practices of Broad-

cast Licensees, 23 F.C.C.2d 430 (1970) ............

Nondiscrimination in Employment Practices of Broad-

cast Licensees, 18 F-‘C.C.2d 240 (1969) ............

Nondiscrimination in Employment Practices of Broad-

cast Licensees, 13 F.C.C.2d 766 (1968) ............

vii

ll,

14

14

14

Miscellaneous — Continued Page

Policy Statement on Comparative Broadcast Hearings,

ee 2, 3, 9, 20, 22

Random Selection Lottery Systems, 89 F.C.C.2d 257

GEE Nbvds décwdnccctvcctidsnt dbécetbdscreecee 12

Reexamination of the Commission's Comparative

Licensing, Distress Sales and Tax Certificate Policies

Premised on Racial, Ethnic, or Gender Classifica-

tions, 3 FCC Red 766 (1988) ................465. 6

Reexamination of the Commission's Comparative

Licensing, Distress Sales and Tax Certificate Policies

Premised on Racial, Ethnic, or Gender Classifica-

Hone, 1 POC Red ISEB (BBBB) .. nce ccccccccces 4,13

Report of the N ‘ional Advisory Commission on Civil

Disorders (1968) (Kerner Commission Report) ..... 9, 235

S. Rep. No. 144, 10ist Cong., Ist Sess. (1989) ........ 13

S. Rep. No. 182, 100th Cong., Ist Sess. (1987) ........ 13, 29

Second Annual Report, Federal Radio Commission,

ae ee > a eer 19

Statement of Policy on Minority Ownership of Broad-

casting Facilities, 68 F.C.C.2d 979 (1978) .......... 11, 18

United States Commission on Civil Rights, Federal

Civil Rights Enforcement Effort - 1974 (1974) ...... ll

United States Commission on Civil Rights, Federal

Civil Rights Enforcement Effort - 1971 (1971) ...... ll

United States Commission on Civil Rights, Window

Dressing on the Set: Women and Minorities in

SEITE écddscdsedceudesicdbesecddcccees ll

WPIX, Inc., 68 F-C.C.2d 381 (1978) ................ 3, 10

i te ee a _———— —_

In the Supreme Court of the United States

OcToserR TERM, 1989

No. 89-453

MetTrRO BROADCASTING, INC.,

Potiti

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 RESPONDENT INTERVENOR

RAINBOW BROADCASTING COMPANY

STATEMENT OF THE CASE

This case arises from a decision of the Federal Com-

munications Commission authorizing a new UHF televi-

sion station on Channel 65, Orlando, Florida. In 1983,

three mutually exclusive applications were filed for the

Orlando facility by the petitioner, Metro Broadcasting,

Inc., the respondent intervenor, Rainbow Broadcasting

Company; and Winter Park Communications, no longer

a party. After evidentiary hearing, a Commission admin-

cast Hearings, 1 FC.C.2d 393 (1965). West Michigan

Broadcasting Co. v. FC.C., 735 F.2d 601, 604 (DC. Cir.

1984), cert denied, 470 U.S. 1027 (1985). The comparison,

summarized by the West Michigan court at 735 F.2d 604-

607, seeks to achieve “maximum diffusion” of station

ownership and “best service to the public,”

Policy Statement, supra, 1 FC.C.2d 393, 394, by evaluat-

“quantitative” integration credit equal to the percentage

eins tA nape ermine fini e+ algae toe

time (sharply reduced credit is awarded for substantial

but less than full time integration), with degree of credit

' Diversification “has been viewed by the Commission as ‘a factor

Citizens Committee for Broadcasting, 4% Ss. 75. 781 (1978)(quot-

ing from the Policy Statement, supra).

also influenced by significance in policy and manage-

ment terms of the staff jobs to be held. Ibid.

If and only if quantitative integration credit has been

given, applicants aay also receive additional credit

directly proportional to the percentage of their quantita-

tive integration, Debra D. Carrigan, 104 F-(C.C.2d 826, 833

(1986), for various enhancing attributes.? The Policy

Statement, | F-C.C.2d, at 395-396, identifies local resi-

quently added to these factors, see WPIX, Inc. 66

F.C.C.2d 381, 411-412 (1978), as was a similar but “lesser”

ae for female ownership, Mid-Florida Televi-

sion Corp., 69 F.C.C.2d 607, 652 (Rev. Bd. 1978), set aside

on other grounds, 87 F‘C.C.2d 203 (1981).

In the comparative evaluation here, Rainbow was

awarded 90% quantitative integration credit for the full

time participation of its 85% owner, Joseph Rey and 5%

? These attributes cannot overcome a clear quantitative differ.

ence, Committee for Community Access v. FC.C., 737 Fld 74, *!

(DC. Cir. 1984); the Commission har found a 12.5% differential to

constitute a “decisive” quantitative advantage, New Continental

Broadcasting Company, 8 FC.C.2d 830, S50 (Rev. Bd 1951).

reconsideration denied, 8 FC.C.2d 631 (1982). reopened and

remanded on other grounds, 9% F.C.C.2d G1 (1954).

’ The Policy Statement's third and fourth factors, considered only

program proposals

public servi v.” 1 FC.C.2d, at 397, and credit or discredit for

“unusually good or unusually poor” records compiled by stations

owned by an applicant, | F.C.C.2d, at 398. The fifth factor credits

applicants for engineering characteristics of their applications

making for more efficient use of the frequency, | F'C.C.2d, at 39%,

and the sixth factor, licensee character, is considered only as a

disabling negative, 1 F.C.C.2d, at 399.

3

owner Esperanza Rey-Mehr, whereas Metro was

awarded credit for 79.2% full time participation and 19.8%

Commission noted Gat oven

j

E

i

i

of Columbia Circuit.

Subsequent Proceedings

After the case had been briefed in the Court of

Appeals and prior to oral argument, the Commission

Racial, Gender or Ethnic Classifications, 1 FCC Red 1315

(1986). Based upon the initiation of this laquiry, the

Commission requested and received remand of this

ates | i i i i il ee i ie eee i ee ~~ - 7 _— eee £ a

proceeding. Pet. App. 58a. Upon remand the Commis-

sion concluded that Rainbow's quantitative integration

advantage over Metro “might not be considered dispos-

itive in this case” and that “deletion of Rainbow's

minority and female preferences could reverse the

outcome of the case.” Pet. App. 56a-57a. The proceeding

was accordingly held in abeyance pending the outcome

of the Inquiry. Pet. App. 57a.

However, the Inquiry was terminated by enactment of

the Continuing Appropriations Act for Fiscal Year 1985,

Pub. L. No. 100-202, 101 Stat. 1329 (1987) (Pet. App.

100a), which prohibited further consideration of the

question by a proviso:

That none of the funds appropriated by this Act shall be

used to repeal, to retroactively apply changes in, or to

continue a reexamination of, the policies of the Federal

Communications Commission with respect to compara-

tive licensing, distress sales and tax certificates granted

under 26 U.S.C. 1071, to expand minority and women

ownership of broadcasting licenses, including those

established in Statement of Policy on Minority Ownership

of Broadcast Facilities, 68 F.C.C.2d 979 and 69 F.C.C.2d

1591, as amended, (52) R.R.2d [1301] (1982) and Mid-

Florida Television Corp., (69) FC.C.2d 607 Rev. Bd.

(1978), which were effective prior to September 12, 1956,

other than to close MM Docket No. 56-464 with a

reinstatement of prior policy and a lifting of suspension

lof] any sales, licenses, applications, or proceedings,

which were suspended pending the conclusion of the

inquiry."

' Essentially identical provisions have been enacted by the

Congress and signed by the President for all subsequent fiscal y ears

See Departments of Commerce, Justice and State, the Judiciary and

Related Agencies Appropriations Act of 1989, Pub. L. No. 100-459,

102 Stat. 2216 (1985) (Pet. App. 10la) and Departments of Com-

merce, Justice and State, the Judiciary and Related Agencies

Appropriations Act of 1990, Pub. L. No. 101-162, 103 Stat. GSS (1989)

(App. la).

el at eale l M ,

... was a part of ‘the effects of past inequities stem-

ming from racial and ethnic discrimination’ H.R. Conf.

Rep. No. 97-765, 97th Cong., 2nd Sess. 43 (1982), U.S.

Code Cong. & Admin. News 1982, p. 2287." West

Michigan Broadcasting Co. v. F-C.C., supra, 735 F.2d

601, 613-614. Thus, the West Michigan court reasoned,

“Congress must be understood to have viewed the sort

of enhancement used here as a valid remedial measure.”

Id., at 614.

In this case the court below concluded that the

constitutional framework of West Michigan was unim-

paired by this Court's subsequent decision in City of

Richmond wv. ].A. Croson Co., 109 S. Ct. 706 (1959),

because West Michigan relied upon Fullilove v. Klutznick,

448 U.S. 448 (1980), which the Croson court continued to

consider good law, and Regents of the University of

California v. Bakke, 438 US. 285, 311-315 (1978)(plurality

cluded (Pet. App. 13e-I4a) that Croson’s two grounds for

distinguishing Fullilove (see 109 S. Ct. 706, 718-720, 723-

724), also distinguish Croson from this case. First, Croson

award of broadcast licenses.” Pet. App. 3a-l4a. Second,

Croson involved enactments of state or local govern-

ments as opposed to enactments of the Congress, whose

female preference is accordingly Whewise not before this Court.

at least twice to endorse the FCC's policy of enhance-

ments for minority ownership in the award of broadcast

diversity of programing standard cannot be equated with

the diversity of educational admissions policy of Bakke,

438 US., at 311-312 (Powell, J.). Pet. App. 20a-2la. The

the Communications Act of 1934, 47 U.S.C. §§ 301, 303,

307. The Act requires that all applicants possess basic

qualifications to be licensees but leaves to the Commis-

sion the duty to define the specific requirements by

regulation. When mutually exclusive applications are

filed, the Commission is required to hold an evidentiary

hearing to determine, on a comparative basis, which

applicant would best serve the public interest, conve-

nience and necessity. 47 U.S.C. § 307; Ashbacker Radio

Corp. v. F-C.C., 326 US. 327, 333 (1945).

Over the years, the Commission has developed criteria

for evaluating the comparative merit of mutually exclu-

sive applications. In codifying the general framework for

comparative decisions, the Policy Statement, supra, |

F.C.C.2d, at 399, promised that it did “not intend to

stultify the continuing process of reviewing our judgment

on these matters” and that changes in policy would

continue to be made as “appropriate”, a promise fulfilled

with adoption of the policy at issue here.

In 1968, in response to the adoption of the 1964 Civil

Rights Act and the Report of the National Advisory

Commission on Civil Disorders (1968) (Kerner Commis-

7 In 1988 the Kerner Commission cautioned that “the media

report and write from the standpoint of a white man’s world. The

ills of the ghetto, the difficulties of life there, the Negro’s burning

sense of grievanee, are seldom conveyed.” Kerner Commission

Report, supra, 203

in the following decade, the Commission sought, through

increasingly stringent employment, affirmative action and

ascertainment requirements, to encourage increased

minority participation in broadcasting.*

In 1973, in TV 9, Inc. v. F-C.C., 495 F.2d 929, 937 (DC.

Cir. 1973), cert. denied, 419 US. 986 (1974), the DC.

Circuit ruled minority ownership a relevant comparative

factor related to the Commission's appropriate interest in

ensuring “broader community representation and practi-

cable service to the public” and the “diversity of owner-

ship of the mass media and diversity of ideas and

expression required by the First Amendment.” Id., at 937

& n.26 (citing Citizens Communications Center v. F-C.C.,

447 F.2d 1201, 1213 n.36 (1971)). The court held the

“reasonable expectation” that minority ownership would

“increase diversity of content” a proper basis for award

of credit. Id., at 938. These rulings were reaffirmed two

years later, in Garrett v. F-C.C., 513 F.2d 1056 (DC. Cir.

1975), in which the court found the minority status of an

owner operator an appropriate factor for consideration in

the context of a request for waiver of a technical signal

coverage rule.

After the decisions in TV 9 and Garrett, the Commis-

sion began giving affirmative comparative consideration

to minority ownership as an enhancement or plus factor

when proposed in conjunction with active station man-

agement participation. See WPIX, Inc., 68 F-C.C.2d 381,

* Nondiscrimination in Employment Practices of Broadcast

Licensees, 60 F.C.C.2d 226 (1976); Nondiscrimination in Employ-

ment Practices of Broadcast Licensees, 5A FC.C.2d 354 (1975);

Nondiscrimination in Employment Practices of Broadcast Licensees,

23 F.C.C_2d 430 (1970); Nondiscrimination in Employment Practices

of Broadcast Licensees, 18 F.C.C.2d 240 (1969); and Nondiscrimina-

tion in Broadcast Licensee Employment Practices, 13 F.C.C.2d 766

(1968); Ascertainment of Community Problems by Broadcast

Applicants, 57 FC.C.2d 418 (1976).

10

411-412 (1978). Also in 1978, the Commission conceded

defeat in its 10 year effort to affect the historic underre-

presentation of minorities in the broadcast industry

through indirect means. It was “compelled to observe

that the views of racial minorities continue to be inade-

quately represented in the broadcast media.” Statement

of Policy on Minority Ownership of Broadcasting Facili-

ties, 68 F-C.C.2d 979, 980 (1978) (footnotes omitted).’

This situation is detrimental not only to the minority

audience but to all of the viewing and listening public.

Adequate representation of minority viewpoints in pro-

gramming serves not only the needs and interests of the

minority community but also enriches and educates the

non-minority audience. It enhances the diversified pro-

gramming which is a key objective not only of the

Communictions Act of 1934, but also of the First

Amendment.

Thus, despite the importance of our equal employment

opportunity rules and ascertainment policies in assuring

diversity of programming it appears that additional

measures are necessary and appropriate. In this regard,

the Commission believes that ownership of broadcast

facilities by minorities is another significant way of

-

* The Commission had available considerable documentary

evidence of minority exclusion compiled by various industry and

government agencies. See, ¢e.g., United States Commission on Civil

Rights, Window Dressing on the Set: Women and Minorities in

Television (1977); Federal Communications Commission's Minority

Ownership Task Force, Minority Ownership Report (1978) (less than

1% minority control of 8500 broadcast stations); United States

Commission on Civil Rights, Federal Civil Rights Enforcement

E-ffort-1974, vol. 1 (1974) (33 minority owned radio stations out of

7,000 licensed; no minority owned television station out of 1,000

licensed); United States Commission on Civil Rights, Federal Civil

Rights Enforcement Effort-1971 (10 minority owned radio stations

out of 7,500 licensed; no minority owned television station out of

1,000 licensed).

ll

fostering the inclusion of minority views in the area of

programming.

Id., at 980-981.

In West Michigan Broadcasting Co. v. F-C.C., 735 F.2d

601 (D.C. Cir. 1984), cert. denied, 470 U.S. 1027 (1985), as

already noted (see pages 6-8, above), the minority

enhancement policy was upheld against the same equal

protection challenge here leveled. The court (735 F.2d, at

612-616) found the policy to be both congressionally

approved"® and constitutionally sound within the holdings

of Fullilove v. Klutznick, 448 U.S. 448 (1980) and Regents

of the University of California v. Bakke, 438 U.S. 265

(1978).

Congressional Action

The Congress has repeatedly endorsed and affirma-

tively required the Commission's minority enhancement

policy. As early as 1981, Congress enacted an amendment

to the Communications Act to permit the Commission to

award certain licenses by a lottery or random selection

system but required that “u ed groups... be

granted significant preferences.”'' The following year,

— v

The court found that the Congress had affirmatively approved

the preference on diversity grounds and that Section 115 of the

Communications Amendments Act of 1982, Pub. L. No. 97-259, 96

Stat. 1087, 1094-95 (codified at 47 U.S.C. § 309(i)(3)(A) and (C)(ii))

represented “congressional confirmation to the factual bases of those

policies’ remedial nature.” Id., at 616.

'' Communications Amendments Act of 1981, Pub. L. No. 97-35,

95 Stat. 357, 736-737 (1981). The Commission declined to implement

the law on the theory that the requirement of preferences for

“underrepresented groups” was so lacking in specificity that any

Commission action would be subject to “serious and repeated” legal

challenge. Random Selection Lottery Systems, 89 F-C.C.2d 257, 279-

280) (1982).

12

—_—- 9

Congress enacted another version of the lottery statute

and noted the “nexus” between minority ownership and

diversity, H.R. Conf. Rep. No. 765, 97th Cong., 2d Sess.

40 (1982), while emphasizing the seriousness with which

it viewed the “severe underrepresentation of minorities in

the media of mass communication” which had resulted

from “past inequities stemming from racial and ethnic

discrimination”. H.R. Conf. Rep. No. 765, 97th Cong., 2d

Sess. 43 (1982). The Report makes clear that Congress

chose the minority preferences as an appropriate way of

“remedying the past economic disadvantage to minorities

which has limited their entry into various sectors of the

economy, including the media of mass communication,

while promoting the primary communications policy of

objective of achieving a greater diversification of the

media of mass communication.” Id., at 44.

In 1986, when the Commission initiated its Inquiry into

the continued validity of its minority and female prefer-

ence policies, Reexamination of Racial, Ethnic or Gender

Classifications, 1 FCC Red 1315 (1986), the Congress

enacted the first of a series of legislative actions which

required the Commission to terminate Docket No. 86-484

and reinstate its minority ownership policies, including

the minority enhancement policy. Continuing Appropri-

ations Act for Fiscal Year 1988, supra (Pet. App. 100a)."

The Congress’ legislative approval and requirement of

the minority enhancement policy has been the result of

This congressional requirement has twice been reenacted and

continues in force. See Departments of Commerce, Justice and

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

Pub. L. No. 100-459, 102 Stat. 2216 (1988); Departments of Com-

merce, Justice and State, the Judiciary and Related Agencies

Appropriations Act, 1990, Pub. L. No. 101-162, 103 Stat. 1020 (1989):

see also S. Rep. No. 144, 101st Cong., Ist Sess. 64 (1989); S. Rep. No.

182, 100th Cong. Ist Sess. 76 (1987).

13

oversight. Over a period of almost a decade,

Congress

has held numerous hearings involving the lack of minority

broadcast station owners.'®

SUMMARY OF ARGUMENT

' See, e.g., Minority Ownership of Broadcast Stations: Hearings

Before the Subcomm. on Communications of the Senate Comm. on

Communications, Science and Transportation, 101st Cong., Ist Sess.

17-19, 75-77 (1987): Hearings on H.R. 2763 Before a Subcomm. of the

Senate Comm. on Appropriations, 100th Cong., Ist Sess. 17-19, 75-

77 (1987); Minority Owned Broadcast Stations: Hearings on H.R.

5373 Before the Subcomm. on Telecommunications, Consumer

Protection, and Finance of the House Comm. on Energy and

Commerce, 99th Cong., 2d Sess. (1986); Minority Participation in the

Media: Hearings on H.R. 1155 Before the Subcomm. on Telecommu-

nications, Consumer Protection, and Finance of the House Comm.

on Energy and Commerce, 98th Cong., Ist Sess. (1983).

14

enhancement as one of several in a changing mix ensures

flexibility in its case by case application and the Commis-

sion’s expressed intent and statutory obligation to alter

policies as circumstances change ensure that it will not

outlive the public need to which it responds. The

efforts to diversify bruadcast speech lend further support

to the Commission's expert judgment that the minority

enhancement policy is a necessary response to an intrac-

table problem.

Whether the minority enhancement policy is consid-

ered as a First Aisendment driven quest for diversity or

in the more familiar fourteenth amendment /equal protec-

tion idiom of an effort to remedy the historical exclusion -

of minorities from broadcasting, the ultimate victim of

exclusion and beneficiary of diversity is the listening

public. Viewed in either light the policy survives equal

protection review. It must be viewed as an act of

Congress employing racial or ethnic criteria and thus

mandating close examination even in the remedial con-

text to ensure that its objectives are within the power of

Congress. Both the diversity and the remedial objectives

are clear, based on an extensive record and well within

the comprehensive remedial power of Congress. Fullilove

v. Klutznick, 448 U.S. 448, 483 (1980). The policy is

narrowly tailored to meet either of its objectives. It

responds to a demonstrated need for inclusion of minor-

ities and a demonstrated failure of race neutral means. Its

“plus factor” approach is the most modest possible and

any minimal burden imposed on nonminority applicants

reflects only the shared cost of eradicating discrimination.

IS

ARGUMENT

I. THE MINORITY ENHANCEMENT POLICY IS A

that given the severe underrepresentation of minorities in

broadcast ownership, the public benefits found to inhere

in local station ownership and management are enhanced

if local owner-managers include members of minority

groups because such operations have the potential to

increase the diversity of programing available to the

lenge to the policy wrenches it from its necessary legal

and factual context and analyzes it by reference to

regulatory contexts in which it finds no parallel, thus

fatally distorting the focus of the comparative licensing

process and ignoring the constitutional imperative on

which the policy rests. The general breadth of the

Commission's discretion; the narrow focus and minor role

of this hcensing policy in the exercise of that discretion,

and the demonstrated and irreplaceable contribution of

the policy to the preservation of First Amendment values

which is the Commission's unique mandate, suffice to

establish that in adopting the challenged enhancement

policy the Commission has stayed well within the

constitutional limits of its power.

A. The Constitutional Propriety Of The Minority En-

hancement Pohcy Must Be Assessed In Light Of The

Origin And Purpose Of Commission Regulation.

\ valid constitutional analysis of the challenged policy

must take as its starting point the root of the Commis:

If

ing Co., 309 US. 134, 141, 142 (1940). Given this origin

and purpose, the Commission was delegated “power far

exceeding and different from the conventional judicial

modes for adjusting conflicting claims,” requiring it to

“initiate inquiry” and “control the range of investigation

in ascertaining what is to satisfy the requirements of the

public interest in relation to the needs of... the whole

nation in the enjoyment of {communications} facilities

....” Id, at 142-143.

The Commission's power, then, is not akin to the

“reviewing power... conferred upon the courts under

Article III,” id., at 141, and “[t}he Communications Act is

not designed primarily as a new code for the adjustment

of conflicting private rights through adjudication,” id., at

138. Rather, the Commission's is the “plenary” power of

an expert body “to formulate and implement” policy in

its mandated area of expertise, a power which carries

with it the discretion, where dictated by that mandate, to

adopt a race conscious policy such as this one. Swann v.

Charlotte-Mecklenburg Board of Education, 402 US. 1,

16 (1971); NAACP v. F-PC., 425 U.S. 662, 670 n.7 (1976);

see Regents of the University of California v. Bakke, 435

LS. 265, 313 (1978)(opinion of Powell, J.).

B. The Judgment That The Minority Enhancement

Policy Is Essential To Promotion Of The Commis-

sion’s Diversity Objective Was Well Within The

Bounds Of Commission Discretion.

The Communications Act “puts upon the Commission

the burden of determining the composition of [{broad-

cast) traffic” subject to the “criterion” of “the ‘public

interest, convenience, or necessity” ~ National Broadcast

ing Co. v. United States, 319 U.S. 190, 216 (1943). “The

‘public interest’ to be served under the Communications

Act is... the interest of the listening public in ‘the larger

and more effective use of radio.’ § 303(g).” Id.

Central to the effectuation of this mandate has been

“the C_.nmission’s goal of promoting diversity in radio

programming.” F.C.C. v. WNCN Listeners Guild, 450

LS. 582, 600 (1981). “In setting its licensing policies, the

Commission has long acted on the theory that diversifi-

cation of mass media ownership serves the public interest

by promoting diversity of program and service view-

points, as well as by preventing undue concentration of

economic power.” F.C.C. v. National Citizens Committee

for Broadcasting, 436 U.S. 776, 780 (1978). “This Court

has approved of” that goal and recognized that “the

Commission is... vested with broad discretion in deter-

mining... what policies should be pursued in promoting

it.” FC.C. v. WNCN Listeners Guild, supra, 450 U.S. 582,

600.

The minority enhancement policy reflects the Commis-

sion’s judgment that “[a]dequate representation of minor-

ity viewpoints in programming... enriches and educates

the non-minority audience” and “enhances the diversified

programming which is a key objective... of the Com-

munications Act [and] the First Amendment.” Statement

of Policy on Minority Ownershiy, of Broadcasting Facili-

ties, 68 F.C.C.2d 979, 981 (1978). its adoption followed

years of less direct efforts to encourage minority broad-

cast entry, which left minority licensees essentially absent

from the ranks of station owners. See supra, pages 9-11,

14 n.13: West Michigan Broadcasting Co. v. FC.C., 7%

F 2d 601. 608 v5 (DC. Cir), cert. denied, 470 US. 1027

(1985).

The decisions of this Court have long and consistently

made clear that “the First Amendment values under

lying the Commission's diversification policy may prop

Is

erly be considered by the Commission in determining

where the public interest lies. “The “public interest”

standard necessarily invites reference to First Amend-

ment principles, Columbia Broadcasting System, Inc. v.

Democratic National Committee, 412 U.S. 94, 122 (1973),

and, in particular, to the First Amendment goal of

achieving ‘the widest possible dissemination of informa-

tion from diverse and antagonistic sources, Associated

Press wv. United States, 326 U.S. 1, 20 (1944). See Red Lion

Broadcasting Co. v. FC.C., 395 US. 367, 385, 390 (1969).

See also United States v. Midwest Video Corp., 406 US.

649, 667-669, & n.27 (1972)(plurality opinion).” F-C.C. w.

National Citizens Committee for Broadcasting, supra, 496

US., at 795.

C. The Minority Enhancement Policy Addresses An

Imbalance In Industry Ownership Patterns By

Assigning Minor Additional Comparative Credit

For The Greater Service To The Public Potentially

Available From Minority Owner Managers.

The Commission's comparative licensing proceedings

have been governed from the outset by the principle that

“{t}hose who give the least [service] must be sacrificed

for those who give the most. The emphasis must be first

and foremost on the interest, the convenience, and the

necessity of the listening public, and not... the individual

broadcaster....” Second Annual Report, Federal Radio

Commission, 1928, pp. 169-170 (quoted in Pottsville,

supra, 309 US., at 138 n.2). Thus the Commission has

sought so to select and regulate its licensees as to ensure

that they provide the public that “access to social,

political, esthetic, moral, and other ideas and experi-

ences” which is its “collective right,” Red Lion Broadcast.

ing Co. v. FC.C., 395 US. 367, 390 (1969).

Consistent with this controlling formulation, the Com-

mission's minority enhancement policy assigns an affirma-

19

In this case, only integration

sufficient basis for preference. Rainbow was credited

with integrating 90% of its ownership into full time station

management, Metro with 79.2% (plus minor part time

credit). Pet. App. 86a. While the Commission's Review

Board deemed Rainbow's quantitative advantage “proba-

bly” dispositive, Pet. App. 87a, Rainbow also prevailed in

the assessment of enhancements. Pet. App. Sla-S2a, S7a-

88a. Both applicants received credits of varying degree

and attached to various percentages of ownership for

past local residence, future local residence, broadcast

experience and minority ownership, Metro also received

some civic activity credit and Rainbow slight credit for a

].A. Croson Co., 109 §. Ct. 706, 728-729 (19589). N

significance of the minority preference, and thus its

potential impact on non-minorities, even in this case, is

thus more apparent than real.'' Its practical effect is

'! Moreover, while this enhancement opens to munorities an area

records, since that credit attaches only to the ownership role trom

which they have been almost entirely exchided

2!

apphcations '

Even within the single factor of integration of ownership,

the weight attaching to any subordinate point of prefer-

process

reviewing our judgment on these matters,” | FC.C_2d,

399, and it is implicit in the public interest standard: “In

each case that comes before it the Commission must still

exercise an ultimate judgment whether the grant of a

heense would serve the ‘public interest, convenience, or

necessity | If time and changing circumstances reveal that

the ‘public interest’ is not served by application of |a

policy }, it must be assumed that the Commission will act

in accordance with its statutory obligations.” National

Broadcasting Co. v. FCC... supra, NY US. 190, 25.

Judicial approval of the minority enhancement policy

thus involves no risk of “uphold ing) remedies that «re

ageless in their reach into the past, and timeless in thew

ability to affect the future.” Wygent v. Jackson Board of

eS 4 +

Education, 476 U.S. 267, 276 (1986) (opinion of Powell,

J).

The Commission's actions are at once constrained and

compelled by its unique and perilous First Amendment

mandate. “Balancing the various First Amendment inter-

ests involved in the broadcast media and determining

what best serves the public's right to be informed is a task

of a great delicacy and difficulty. The process must

necessarily be undertaken within the framework of the

regulatory scheme that has evolved over the course of the

past half century,” during which the Congress and the

Commission “have established a delicately balanced

system of regulation intended to serve the interests of all

concerned.” Columbia Broadcasting System, Inc. v.

Democratic National Committee, 412 U.S. 94, 102 (1973).

The Commission must serve on the one hand as

“guardian of the public interest,” id., at 117, charged to

advance “the purpose of the First Amendment to pre-

serve an uninhibited marketplace of ideas in which truth

will ultimately prevail,” Red Lion Broadcasting Co. v.

FC.C., 395 U.S. 367, 390 (1969), and on the other hand

must avoid “the risk of an enlargement of government

control over the content of broadcast” speech, CBS,

supra, 412 US., at 126.

It is the long standing conviction of the Commission,

the Congress and the court charged with review of

Commission licensing decisions that the minority

enhancement policy is essential to achievement of the

Commission's diversity goal. See supra, pages 8-14. That

being so, any detriment to the private business interests

of individual license applicants resulting from application

23

of the enhancement policy is a matter which cannot be

deemed an appropriate counterweight to the public good

sought through application of the policy. This is not a

case of disadvantaging one category of applicant in order

to advantage another;!® it is rather a situation in which

one category of applicant offers a unique benefit entitled

to comparative weight. Should that weight in any case

prove decisive, then that is simply a case of sacrificing

one of “those who give the least” for one of “those who

give the most.” See FCC. v. Pottsville Broadcasting Co.,

supra, 309 U.S. 134, 138 n.2.

It is objected that the Commission's conviction of

benefit stands unproven. That is an inadmissible objec-

tion. It is the considered judgment of the expert body

charged with making judgments in this area that there is

a sufficient nexus between diversity of ownership and

diversity of programing perspective to warrant the

policy. This Court has long “recognized that the Commis-

sion’s decisions must sometimes rest on judgment and

prediction rather than pure factual determinations’, that

“ijn such cases complete factual support for the Com-

mission's ultimate conclusions is not required, F.C.C. v.

WNCN Listeners Guild, 450 U.S. 582, 594-595 (1981); and

that the question whether diverse ownership would lead

to diversity of viewpoint is precisely such a question,

FCC. v. National Citizens Committee for Broadcasting,

436 U.S. 775, 796-799 (1978). In NCCB (at 796-797) the

Court also identified the fundamental danger facing any

more direct or non-structural approach to achieving the

5 In this connection it is not without relevance that a license

applicant, unlike a job applicant or a candidate for school admission,

is a business entity which more often than not includes multiple

individuals chosen for their various contributions to an ideal mix, by

virtue of where they live, what media interests they hold and so on.

Moreover, even the marginal constraints imposed by the policy are

limited to a single method of station acquisition.

2A

desired diversity: “As the Court of Appeals observed,

‘diversity and its effects are elusive concepts, not easily

defined let alone measured without making qualitative

judgments objectionable on both policy and First

Amendment grounds.”

In fact, however, there is more at work here than an

agency mandate; it is a bedrock principle of our First

Amendment jurisprudence and, indeed, our societal

of shared values, that “right conclusions are

more likely to be gathered out of a multitude of tongues,

than through any kind of authoritative selection. To many

this is, and always will be, folly; but we have staked upon

it our all.” United States v. Associated Press, 52 F. Supp.

362, 372 (S.D.N.Y.), effirmed, 326 U.S. 1 (1945)(Hand, J.).

Indeed, it was precisely that assumption of the primary

importance of diversity which underlay the judgment of

a majority of the Court in Regents of the University of

California v. Bakke, 438 U.S. 265, 272, 314, 320, 326 & n.1

(1978) that “the interest of diversity is compelling in the

context of a university's admissions program.”

It is suggested as well that to act on the knowledge that

our social, cultural and ethnic backgrounds affect our

outlooks amounts to unconstitutional racism. Such an

artificial viewpoint both denies us the enjoyment of our

differences and pretends away such basic problems

addressed by the policy as “a press that...reflects the

biases, the paternalism, the indifference of white Amer-

ica,” Kerner Commission Report, supra, 203. It is, at

bottom, a rejection of the 50 year judicially approved

quest for program diversity. However, it is also not legal

theory but social opinion and accordingly offers no basis

for judicial displacement of agency discretion, “ ‘since

Congress has confided the problem to the latter.” FC.C.

v. WOKO, Inc., 329 U.S. 223, 229 (1946). ‘Courts should

not overrule an administrative agency decision merely

because they disagree with its wisdom. Radio Corp. of

25

America v. United States, 341 U.S. 412, 420 (1951).” CBS,

Inc. v. FC.C., 453 US. 367, 394 (1981).

The minority enhancement policy is in the mainstream

of Commission regulation. Both the legitimacy and the

constitutional and statutory necessity of its diversity

objective have been confirmed in decisions of this Court

spanning more than half a century. The Commission

devoted some 10 years to a varied and unsuccesful effort

to reach the same goal through less direct regulations.

Notwithstanding the contrary protestations of the peti-

tioner, the policy imposes little if any burden on non-

minority applicants and any such burden is no different

in effect from that inherent in the comparative process;

many well qualified applicants must be denied so that

others who better satisfy the public's paramount service

needs may be granted.

Finally, what is really challenged here is not an isolated

regulation. It is a small but vital segment of a delicate

regulatory scheme whose principal function is protection

of our collective right to receive “information from

diverse and antagonistic sources,” Associated Press v.

United States, 326 U.S. 1, 20 (1945). There is no precedent

which requires or even suggests the propriety of disman-

tling that regulatory scheme simply because this policy in

literal fact involves a race based classification.

Il. THE MINORITY ENHANCEMENT POLICY SATIS-

FIES THE DEMANDS OF PREVAILING EQUAL

PROTECTION SCRUTINY WHETHER CONSID-

ERED IN LIGHT OF ITS UNIQUE FIRST AMEND-

MENT IMPERATIVE OR ITS MORE TRADITIONAL

REMEDIAL PURPOSE.

The minority enhancement policy is an act of Con-

gress. It has enjoyed explicit congressional approval since

26

1982"° and in 1987 it was legislatively enacted.” In 1982,

Congress identified its objectives in endorsing the minor-

ity enhancement poticy: to further its goal of encouraging

greater diversity of programing and viewpoint in broad-

casting; and to remedy the historic “severe underrepres-

entation” of minorities in broadcasting. H.R. Conf. Rep.

No. 765, 97th Cong., 2d Sess. 43 (1982). The interrelation-

ship of these two objectives led Congress to conclude

that: '

One means of remedying the past economic disadvan-

tage to minorities which has limited their entry into

various sectors of the economy, including the media of

mass communications, while promoting the primary

communications policy objective of achieving a greater

diversification of the media of mass communications, is

to provide that a significant preference be awarded to

minority-controlled applicants in FCC licensing proceed-

ings for the media of mass communications.

Id., at 44. To support: the policy under review, it is

necessary that at least one of its goals constitute a

compelling governmental interest.

See footnote 10, supra. In 1982 the Congress authorized

Commission use of a random selection lottery for the awarding of

certain licenses, but required that in administering the lottery the

Commission must include “significant preferences” for applicants

increasing diversification of ownership in general, plus “an addi

tional significant preference” for minority appheants. Communica-

tions Amendments Act of 1982, Pub. L. No. 97-259. 96 Stat. 10ST

(codified at 47 U.S.C. § WOO1i)(3)(A). That remediation of past

discrimination as well as diversification was an objective of this

legislation is clear from the fact that the preference was to be

applied to both content and noncontent commumeations services

" Pub. L. No. 101-162, 103 Stat. 98S (1989) (App. i): Pub. L. No

100-457, 102 Stat. 2216-17 (1988) (Pet. App. l0la): and Pub L. No

100.202, 101 Stat. 1329 (1987)( Pet App Ola

Zi

8, United States v. Pottsville Broadcasting Co., 309 US.

relevant power of Congress, Fullilove, at 472.

‘While the Congress chose to act through the vehicle of

bills, the resulting action is nevertheless an “act of

Congress”. National Treasury Employees Union vo. Devine, 733 Fld

14, 117 n8 (DC. Cir, 1984). “The reach of the spending power of

Congress is at least as broad as the regulatory powers of Congress.

Fullilove vo. Klutenick, 448 U.S. 448, 475 (1980)

Wygant v. Jackson Board of Education, 476 U.S. 267, 277

(1986) (plurality opinion).

* See Pub. L. No. 100-202, 101 Stat. 1329 (1987). S. Rep. No. 182,

100th Cong., Ist Sess. 76 (1989) states: “Congress has expressed its

support for such policies in the past and ‘es found that promoting

diversity of ownership of broadcast properties satisties important

public policy goals. Diversity of ownership results in diversity of

programming and improved service to minority and women

audiences.

B. The Minority Enhancement Policy Is Narrowly

Tailored To Achieve Its Objectives.

The minority enhancement policy is narrowly tailored

to meet either the diversity or the remedial objective. The

Commission adopted the policy only after a number of

years of seeking to achieve minority participation through

more indirect methods such as expanded equal opportu-

nity rules” and license ascertainment requirements”!

proved insufficient. Despite the Commission's decade

long effort, the Minority Ownership Task Force in 1978

was still advising the Commission that “unless minorities

are encouraged to enter the mainstream of the commer-

cial broadcasting business, a substantial portion of our

citizenry will remain underserved and the larger non-

minority audience will be deprived of the views of

minorities. Minority Ownership Report 1 (1978).

In addition to the efforts directly related to minority

involvement, the Commission has sought to promote new

entrants by making new FM radio and low power

television frequencies available for new applicants. See

Availability of FM Broadcast Assignments, 101 F.C.C.2d

638 (1985), reconsideration granted in part and denied in

part, 59 Rad. Reg.2d (P&F) 1221 (1986), affirmed sub

nom. National Black Media Coalition v. F-C.C., 822 F.2d

277 (2d Cir. 1987); Low Power Television Service, 51 Rad.

Reg.2d (P&F) 476 (1982), reconsideration granted in part

and denied in part, 53 Rad. Reg.2d (P&F) 1267 (1983).

Despite these efforts to use race neutral alternatives,

*® See note 8, supra.

*! See Ascertainment of Community Problems by Broadcast

Applicants, 57 F.C.C.2d 418 (1976), which provided extensive and

detailed requirements for description of “community leaders” in an

effort to require licensees to be responsive to their entire communi-

ties, including women and minorities.

30

ineroei ee ee eee ee. ee ee ae eS

- 2 \ é

:

minority owners remain severely underrepresented.“ The

fact that such race neutral efforts have been made is

relevant to a determination whether race conscious

efforts are necessary. See United States v. Paradise, 480

US. 149, 171 (1987).

While the comparative minority enhancement policy is

race conscious, it is in the nature of a plus factor rather

than a “quota” or “set aside” and no opportunity is

reserved for any minority applicant. It is thus closely

analogous to the Harvard plan Justice Powell was

prepared to accept in Bakke, 438 U.S., at 315-320.

The minority enhancement is avaiicble only to appli-

cants in comparative proceedings wh. have committed

to work at the proposed station on a day to day basis. It

is a “qualitative” integration factor equivalent to the

enhancement given for past and present local residence,

civic activities and broadcast experience, each of which

is available only to applicants receiving quantitative

integration credit. See supra, pages 2-3. By making the

enhancement one of a number of plus factors and

limiting its availability to integrated owners in proportion

to their percentage of ownership, the Commission took

the most limited action capable of affecting the compar-

ative process.

C. The Minority Enhancement Policy Imposes An

Insubstantial Burden on Nonminority Applicants.

A narrowly tailored program need not be the least

restrictive means of implementation to be acceptable.

® Ac vording to the most recent survey data, 3.5% of all radio and

television stations in the United States are controlled by minority

individuals. The same data indicate that 81- women and minority

group members received station licenses in cases where a compar-

ative minority enhancement was awarded. Congressional Research

Service, Minority Broadcast Station Ownership and Broadcast

Programming: Ils There a Nexus? 40-41 (1988).

31

Fullilove, 448 US., at 508 (Powell, J.). In the case of the

minority enhancement factor, the burden placed on non-

minority applicants is minimal. By its terms the enhance-

ment policy is a plus factor that cannot overcome

nonracial comparative factors such as full time integra-

tion. Moreover, since the preference functions mainly in

proceedings involving new station authorizations, any loss F

by a nonminority is more analogous to “hirings” than

“firings,” which require stronger justification. Wygant v.

Jackson Board of Education, supra, 476 U.S., at 282-283

(Powell, J.). The possibility that nonminority applicants

may be adversely affected by the policy does not render

it improper: “As part of this Nation’s dedication to

eradicating racial discrimination, innocent persons may

be called upon to bear some of the burden of the

remedy.” Id., at 280-281.

CONCLUSION

The judgment of the Court of Appeals should be

affirmed.

Respectfully submitted,

Margot Polivy

Counsel of Record

Katrina Renouf

Counsel

RENOUF & POLIVY

1532 Sixteenth Street, N.W.

Washington, D.C. 20036

(202) 265-1807

March 1990