# Respondents Brief — Metro Broadcasting, Inc. v. FCC

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0682%3A09

## Record

- **Collection:** Supreme Court brief
- **Document type:** Respondents Brief
- **Published:** January 1, 1990
- **Citation:** 497 U.S. 547

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0682%3A09. Public record. Not legal advice.