Amicus Curiae Brief — Metro Broadcasting, Inc. v. FCC

In the Supreme Court of the Wnited States

OCTOBER TERM, 1989

METRO BROADCASTING, INC., PETITIONER

Vv.

FEDERAL COMMUNICATIONS COMMISSION, ET AL.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

SUPPORTING PETITIONER

JOHN G. ROBERTS, JR.

Acting Solicitor General

‘AMES P. TURNER

Acting Assistant Attorney General

THOMAS W. MERRILL

Deputy Solicitor General

ROGER CLEGG

Deputy Assistant Attorney General

MICHAEL R. LAZERWITZ

Assistant to the Solicitor General

Department of Justice

Washington, D.C. 20530

(202) 633-2217

QUESTION PRESENTED

Whether the Federal Communications Commission's policy of

awarding a qualitative enhancement for minority ownership in

ponent of the Fifth Amendment.

(1)

TABLE OF CONTENTS

ES LE LEE PE

Argument:

The Federal Communications Commission’s policy

of awarding a qualitative enhancement for minori-

ty ownership in comparative license proceedings

violates the equal protection component of the Fifth

EE rr

1. Classifications by the federal government on

the basis of race may be sustained only if “nar-

rowly tailored” to achieve a “compelling” in-

EEE re rer eT TTT TTT TTT

Il. The Federal Communications Commission’s

policy of awarding a qualitative enhancement

for minority ownership in comparative license

proceedings is not “narrowly tailored” to

achieve a “compelling” interest ..........

EEE DLL LE ILI EEE LED

TABLE OF AUTHORITIES

Cases:

Associated Press v. United States, 326 U.S. 1

EE IE LS AE OE

Astroline Communications Co. v. Shurberg Broad-

casting of Hartford, Inc., cert. granted, No. 89-700

a ere

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

Brown v. Board of Educ., 347 U.S. 483 (1954) ..

Buckley v. Valeo, 424 U.S. 1 (1976) ...........

Califano v. Goldfarb, 430 U.S. 199 (1977) .....

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

Tee eee ces escccceeses

17

lV

Cases — Continued: Page

Dellmuth v. Muth, 109 S. Ct. 2397 (1989) ..... 15

FCC v. National Citizens Comm. for Broadcasting,

Ge Te, Wee ED one dens cedacnnueeses<e< 24, 25

Faith Center, Inc., 3 F.C.C. Red 868 (1988) .... 5

Frontiero v. Richardson, 411 U.S. 677 (1973) ... 17

Fullilove v. Klutznick, 448 U.S. 448 (1980) ..... 9, Il,

12, 14, 15, 16, 20, 22, 23

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

Dt cavddésstnenesdacedulbendelituaieneses 2

Hampton v. Mow Sun Wong, 426 U.S. 88

Dl Us cic contbemenhnaaunne deena 12, 14, 15, 19

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

Dt te dcenadiadcusiuimbeeeenetbhsneen es 9

INS v. Chadha, 462 U.S. 919 (1983) .......... 26

Johnson v. Robison, 415 U.S. 361 (1974) ...... 12

Jones v. Alfred H. Mayer Co., 392 U.S. 409

SE asbakdsuadadtbhereéhed shacsdeaceeecess 19

Katzenbach v. Morgan, 384 U.S. 641 (1966) .... 14, 16

Korematsu v. United States, 323 U.S. 214

DE Adcbanciidamhisanehebencedovcseeees 13

Loving v. Virginia, 388 U.S. 1 (1967) .......... 9, 25

Metro Broadcasting, Inc.:

ee IED og cc cccccceccecece 4

ee ED on cc cnccccecsoeces 4

es IED cc cccccecccecess 5

Dee SE IED 6 cocscceccceseces 5

Miami Herald Publishing Co. v. Tornillo, 418 U.S.

een nek edha eden Gecene ce 24

Myers v. United States, 272 U.S. 52 (1926) ..... 13

NAACP v. FPC, 425 U.S. 662 (1976) ......... 14

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

Regents of the University of Cal. v. Bakke, 438 U.S.

DET hGndahbeasenneaeeds¥encds 10, 21, 24, 25

Roberts v. United States Jaycees, 468 U.S. 609

tt: ..tuncdbcnbineeediin) tekenhenet nes det 10

Rostker v. Goldberg, 453 U.S. 57 (1981) ....... 17

SEC v. Chenery Corp., 318 U.S. 80 (1943) ..... 22

Cases — Continued: Page

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

| DT: Kidenwendnadaddibadeb atlas thd ae oe 4

Strauder v. West Virginia, 100 U.S. 303 (1880). . 9

Swann v. Charlotte-Mecklenburg Bd. of Educ. , 402

Ss OE becudecdeenebabaceadunssesec< 9

Syracuse Peace Council v. FCC, 867 F.2d 654 (D.C.

Cir. 1989), cert. denied, No. 89-312 (Jan. 8,

SD seovdilctenktdsesedanbodGuneeces 28

Tafflin v. Levitt, No. 88-1650 (Jan. 22, 1990) .. 26

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

cert. denied, 419 U.S. 986 (1974) ............ 2,3

TVA v. Hill, 437 U.S. 153 (1978) ............. 19

United States v. Paradise, 480 U.S. 149 (1987) .. 9, 11,

13, 23, 29

Vance v. Bradley, 440 U.S. 93 (1979) .......... 15

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

Weinberger v. Wiesenfeld, 420 U.S. 636 (1975) .. 12, 17

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

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

GEE 6d06aeeecdsadeanakensuceteoouusaint 5, 6

Wygant v. Jackson Bd. of Educ., 476 U.S. 267

DN puaueueseccscadieeetedsccneneal 6, 9, 10, 11,

20, 21, 24, 25, 29

Constitution, statutes, and regulation:

U.S. Const.:

ME tc ok en ekenseseeeeked 12, 13, 18

ree er 2 19

EE Seb in eacadd eu nceu anal 1, 12, 13,

14, 18, 19, 25

Oe cuvnsuetcabadsacndadindenvenms 13, 18, 25

Equal Protection Clause ......... 12, 25

BD dccesceuaseudscbasenséccnes 13, 14, 18, 25

Civil Rights Act of 1964, 42 U.S.C. 2000a ef seq.:

Ge Ges SD ccccccccccccsccces l

ey Cs SET GU udeccsbcvubucescedee l

Vi

Statutes and regulation — Continued: Page

Communications Act of 1934, 47 U.S.C. 151 ef seq.:

i CMT tha neceuétcceccececoscasee 2

SEED «cccecssccescoesesoese 4

EE a nach sede béusoeoesusves’ 2

ec eceeeeeceucondeseesese 2

ia cd ce ececcecesseteoecees 2

EET Tere TT TTT Te 6

GF Pie BED cccccccccccccccess 3, 19, 20

Departments of Commerce, Justice, and State, the

Judiciary, and Related Agencies Appropriations

Act, 1988, Pub. L. No. 100-202, 101 Stat. 1329-31.

Op BE onc dbenekecdnkseustedéoundevecce 5, 19

Departments of Commerce, Justice, and State, the

Judiciary, and Related Agencies Appropriations

Act, 1989, Pub. L. No. 100-459, 102 Stat.

ET i ca ivens dcGasnd dbeneeeneeseses 5, 19

Departments of Commerce, Justice, and State, the

Judiciary, and Related Agencies Appropriations

Act, 1990, Pub. L. No. 101-162, 103 Stat.

EE ee eee dddgdeneceneness 5, 19

Radio Act of 1927 (Act of Feb. 23, 1927), oh. 169,

ee tie eheeacesens 18

I 3

i nad coca ck deeenedsaeees l

tc tcnc ok ee eedsaeneeene see |

Miscellaneous:

Amendment of § 73.606(b), Table of Assignments,

Television Broadcast Stations (New Smyrna

Beach, Orlando, and Winter Park, Florida), 50

Rad. Reg. 2d (P & F) 1714 (1982) ........... 3

Broadcast/Mass Media Application Statistics, FCC

Ann. Rep. (Fiscal Years 1979-1988) ......... 21

Vil

Miscellaneous — Continued:

133 Cong. Rec. $14,395 (daily ed. Oct. 15,

PED Be eeccccc bsssdbucsssocsceccccéovece

PEEP Ob Ube ceseseusddevencesosescescccces

Congressional Research Service, Minority Broadcast

Station Ownership and Broadcast Programming:

Is There A Nexus? (June 29, 1988) ..........

H.R. Conf. Rep. No. 208, 97th Cong., Ist Sess.

SET “Ueubciccdcouneetebetteesboesebste<e

GED - Sedecccececcedaccseuesesecesssecsons

Minority Ownership of Broadcast Stations: Hearing

Before the Subcomm. on Communications of the

Senate Comm. on Commerce, Science, and Trans-

portation, \O\st Cong., Ist Sess. (1989) ......

Minority Ownership Taskforce, FCC. Minority

Ownership in Broadcasting (1978) ...........

Minority-Owned Broadcast Stations: Hearing on

H.R. 5373 Before the Subcomm. on Telecom-

munications, Consumer Protection, and Finance

of the House Comm. on Energy and Commerce,

99th Cong., 2d Sess. (1986) ................

Minority Participation in the Media: Hearings Before

the Subcomm. on Telecommunications, Consuiner

Protection, and Finance of the House Comm. on

Energy and Commerce, 98th Cong., Ist Sess.

SE ‘skksndedseewneedatedsenteneeneber oc

Parity for Minorities in the Media: Hearing on H.R.

1155 Before the Subcomm. on Telecommunica-

tions, Consumer Protection, and Finance of the

House Comm. on Energy and Commerce, 98th

Se, Be es SE ccc conécsccccoscsucs

Policy Statement on Comparative Broadcast Hear-

SUR, T FA L.e BOO GOED cccccccccccccces

27

19

19

26

26-27

_ §n the Supreme Court of the United States

Miscellaneous — Continued: Page OCTOBER TERM, 1989

Reexamination of the Commission’s Comparative

Licensing, Distress Sales and Tax Certificate No. 89-453

Policies Premised on Racial, Ethnic, or Gender

Classifications, 1 F.C.C. Red 1315 (1986), METRO BROADCASTING, INC., PETITIONER

modified, 2 F.C.C. Red 2377 (1987) ......... l v.

Report Concerning General Fairness Doctrine Obli- FEDERAL COMMUNICATIONS COMMISSION, ET AL.

gations of Broadcast Licensees, \02 F .C.C.2d 143

CED cceorceenbdccenecsceucceceosecceces 28 on waar an can o

S. Rep. No. 182, 100th Cong., Ist Sess. (1987) .. 20, 26 TO THE UNITED STATES COURT OF APPEALS

S. Rep. No. 388, 100th Cong., 2d Sess (1988) 20 FOR THE DISTRICT OF COLUMBIA CIRCUIT

Statement of Policy on Minority Ownership of

Broadcasting Facilities, 68 F.C.C.2d 979 BRIEF FOR THE UNITED STATES AS ~~ _ CURIAE

DE teste nésseasedsssndeeuceseoosods 2, 3, 22, 28 SUPPORTING PETITION

— No. 10 (J. neveuen = swe - ‘ ene ain Gaiam eciia .

The United States is responsible for enforcing many statutes

prohibiting discrimination on the basis of race or national origin

(see, e.g., 42 U.S.C. 2000e-5(f)(1)), and may intervene in cases

brought under the Fourteenth Amendment (see, e.g., 42 U.S.C

2000h-2). In this case, the United States filed a brief as amueus

curiae in the court of appeals, and twice filed extensive comments

with the Commission as part of the inquiry proceeding to con-

sider the validity of its minority preference policies.' In each of

these submissions, the United States maintained that the Com-

mission’s policies could not withstand the exacting scrutiny re-

quired by the Constitution and this Court’s decisions, and were

thus invalid. The United States adheres to that position.?

' See Reexaminaiion of the Commission's Comparative Licensing, Distress

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

Classifications, | F .C.C. Red 1315 (1986), modified, 2 F.C.C. Red 2377 (1987).

? Given the position of the United States on the question presented, and in

order for the Court to have the benefit of the views of the administrative agen-

cy involved, the Acting Solicitor General has authorized the Federal Com-

munications Commission to appear before this Court through its own attorneys.

See 28 U.S.C. 518(a); 28 C_F.R. 0.20{a).

(1)

STATEMENT

1. In the Communications Act of 1934, Congress assigned

the Federal Communications Commission (FCC) exclusive

authority to grant licenses to build and operate radio and televi-

sion stations in the United States. See 47 U.S.C. 151, 301, 303,

307. When two or more persons file mutually exclusive applica-

tions for the same broadcasting authority, the FCC conducts what

is known as a comparative hearing to determine which applicant

will best serve the “public convenience, interest, or necessity.”

47 U.S.C. 303. See generally Policy Statemeni on Comparative

Broadcast Hearings, | F.C.C.2d 393, 394 (1965) [/965 Policy

Statement|. In such a proceeding, the FCC weighs both “quan-

titative” and “qualitative” attributes of competing applicants. The

quadMtitative assessment generally rests on each applicant’s pro-

portional integration of ownership into management and each

applicant’s other media holdings. If one applicant has a clear

quantitative advantage, then that applicant will receive the license

if he is otherwise qualified. Pet. App. 4a. If there are no signifi-

cant quantitative difterences among the applicants, the FCC then

assesses each applicant’s relative strengths on a variety of

“qualitative” factors. These factors include local residence, par-

ticipation in civic activities, past broadcast experience, and — of

particular relevance here —the race (and gender) of the owner.

See Pet. App. 4a; WPILX, Inc., 68 F.C.C.2d 381, 411-412 (1978).

As originally conceived and implemented, the FCC’s selection

criteria for comparative license proceedings were race-neutral.

However, in response to decisions of the District of Columbia

Circuit, see, e.g., TV 9, Inc. v. FCC, 495 F.2d 929 (1973), cert

denied, 419 U.S. 986 (1974); Garrett v. FCC, $13 F.2d 1056

(1975), the FCC adopted a policy of awarding preferences in com-

parative proceedings for minority ownership. See Statement of

Policy on Minority Ownership of Broadcasting Facilities, 68

F.C.C.2d 979, 980-981 (1978) [1978 Policy Statement|; WPIX,

Inc., 68 F.C.C.2d at 411-412; Minority Ownership Taskforce,

FCC, Minority Ownership in Broadcasting \-3, 8-12, 30-31 (1978)

[Task Force Report|. The Commission explained that the policy

3

was required because “[f]ull minority participation in the owner-

ship and management of broadcast facilities results in more

diverse selection of programming * * * [, and] an increase in

ownership by minorities will inevitably enhance the diversity of

control of a limited resource, the [broadcast] spectrum.” /978

Policy Statement, 68 F.C.C.2d at 981.

For purp ses of the preference policy, the Commission defined

“minorities” to include “those of Black, Hispanic Surnamed,

American Eskimo, Aleut, American Indian and Asiatic American

extraction.” 1978 Policy Statement, 68 F.C.C.2d at 980 n.8.

Minority ownership and participation in management is a “plus-

factor [to be] weighed along with all other relevant factors in

determining which applicant is to be awarded a preference.” TV

9, Inc., 495 F.2d at 941 n.2. The FCC awards a credit for minority

ownership to the extent that an individual minority owner will

actively participate in the management of the station. See id. at

941; WPIX, Inc., 68 F.C.C.2d at 411-412.

2. In 1982, the FCC assigned a new UHF television channel

to Orlando, Florida. See Amendment of § 73.606(b), Table of

Assignments, Television Broadcast Stations (New Smyrna Beach,

Orlando, and Winter Park, Floric'a), 50 Rad. Reg. 2d (P & F)

1714 (1982). The following year, competing applications to build

and operate that television station were filed with the FCC by

three entities: petitioner Metro Broadcasting, Inc., a corporation

owned by nine men, four of whom are local residents and

> This programming diversity rationale undergirds other FCC policies de-

signed tO promote greater minority participation in broadcasting. Since 1978,

the FCC has sought to increase such minority participation by awarding tax

incentives to station Owners who sell facilities to minority-controlled applicants.

See 26 U.S.C. 1071; 1978 Policy Statement, 68 F .C.C 2d at 982-983. By statute,

Congress has also directed the FCC to use minority preferences in the assign-

ment by lottery of certain low-power stations. See 47 U.S.C. 30913 A).

Moreover, in 1978, the FCC adopted its “distress sale” program, under which

licensees, under certain circumstances, may sell stations at below market prices

rather than risk revocation or nonrenewal of the license — but only to minority-

controlled buyers. 1978 Policy Statement, 68 F .C.C.2d at 983. The validity of

that program is before the Court in Astroline Communications Cov. Shurberg

Broadcasting of Hartford, Inc., cert. granted, No. 89-700 (Jan. 8, 1990).

4

one of whom is black; Rainbow Broadcasting Company, a general

partnership consisting of two women and one man, all of whom

are Hispanic; and Winter Park Communications, Inc., a corpora-

tion with no minority ownership. Pet. App. 2a-4a, 81a-88a; Metro

Broadcasting, Inc., 96 F.C.C.2d 1073, 1079-1086 (1983). After

disqualifying Rainbow for misrepresentations in its proposal, the

administrative law judge granted the license to petitioner, con-

cluding that it was “an overwhelming comparative winner over

Winter Park.” Jd. at 1087-1088.

_ The FCC’s Review Board reversed that decision and awarded

the permit to Rainbow. Pet. App. 64a-93a; see Metro Broad-

casting, Inc., 99 F.C.C.2d 688 (1984). The Board concluded, con-

trary to the ALJ’s findings, that Rainbow was a qualified appli-

cant, and thus proceeded to compare all three applicants. The

Board determined that Rainbow ..as not only quantitatively ahead

of petitioner, but also qualitatively superior because Rainbow

was entitled to “a substantial preference for minority participa-

tion [in management] by 90% of its stock ownership * * * in con-

trast with [petitioner’s] 19.8% credit [for minority participation] .”

Pet. App. 87a. Ti e Board also gave Rainbow “a solid broadcast

preference” because one of its principals’ past broadcast experience

was “much more significant” than that of petitioner’s owners.

Ibid. .

In October 1985, the FCC denied both petitioner's and Winter

Park’s applications to review the Board’s decision. Pet. App. -

60a-63a. As a result, the Board's ruling became the FCC’s final

administrative decision under 47 U.S.C. 155(c)(3). Petitioner and

Winter Park filed timely appeals from the Commission’s deci-

sion to the District of Columbia Circuit.‘

* The disposition of those appeals was delayed for several years because of

events arising out of related proceedings. In August 1985, a panel of the court

of appeals held that the FCC had exceeded its statutory authority by adopting

a female preference in comparative license proceedings. Steele v. FCC, 770

F.2d 1192 (D.C. Cir. 1985). The en banc court of appeals, however, granted

a petition for rehearing, vacated the panel opinion, and ordered supplemental

briefing. The court of appeals later granted the FCC's motion for remand, and

the Commission initiated a non-adjudicatory inquiry proceeding to consider

the validity of its female and minority preference policies. See note |, supra.

As a result of the remand in the Sieele case, the court of appeals also remanded

the record in the instant case to the FCC. Pet. App. 58a-59a. On remand,

5

3. In April 1989, a divided court of appeals affirmed. Pet.

App. la-46a. The court first determined that the constitutionality

of the FCC’s minority ownership policy was properly at issue

because “the Commission found on remand that Rainbow's

enhancement for minority ownership was probably dispositive.”

Id. at 10a; see note 4, supra.’ The majority then concluded that

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

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

controlled, and thus that the FCC’s policy “easily passes constitu-

a a App. 10a (quoting West Michigan, 735 F.2d

al .

The majority noted that the West Michigan court had upheld

the FCC’s comparative hearing minority preference policy for

two principal reasons. First, the policy was not a rigid quota

system, but rather “a consideration of minority status as bui one

factor in a competitive multi-factor selection system that is de-

the FCC concluded that “deletion of Rainbow's minority and female preferences

could reverse the outcome of the case and result in an award to [petitioner].”

Pet. App. 57a; see Metro Broadcasting, Inc., 2 F.C.C. Red 1474, 1475 (1987).

The FCC therefore held this case in abeyance pending the outcome of its in- |

quiry proceeding reexamining its minority preference policies.

In response to the FCC's initiation of its inquiry proceeding, however, Con-

gress in 1987 enacted an appropriations rider that prohibited the Commission

from spending any appropriated funds “to repeal, to retroactively apply changes

in, Of to continue a reexamination of” its minority and female preference

policies. Pub. L. No. 100-202, 101 Stat. 1329-31 to 132¥-32 (1987). Congress

has since eatended the prohibition through fiscal years 1989 and 1990. See Pub.

L. No. 100-459, 102 Stat. 2216-2217 (1988); Pub. L. No. 101-162, 103 Stat.

1020-1021 (1989).

In response to the appropriations rider, the FCC closed its inquiry proceeding

and reinstated its policy of awarding gender and racial preferences in com-

parative license proceedings. See, ¢.g., Faith Center, Inc., 3 F.C.C. Red 868

(1988). The FCC then reaffirmed its earlier decision in this case awarding the

permit to Rainbow and denying petitioner's competing application. Pet. App.

48a-Sia; see Metro Broadcasting, Inc., 3 F.C.C. Red 866 (1988).

* The court of appeals declined to address the validity of the FCC's gender

preference policy, because the FCC had “determined * * * that the outcome

of the proceeding would not change even if no consideration were given to Rain-

bow's five percent female participation.” Pet. App. 10a n.5 (citing 3 F.C.C.

Red at 867 n.1 (Pet. App. 49a n.1)). For that reason, the validity of that policy

is not before this Court.

signed to obtain a diverse mix of broadcasters,” 735 F.2d at 613

(emphasis in original). Second, in amending 47 U.S.C. 309(i) in

1982 to authorize the FCC to award minority preferences in lot-

teries, Congress had recognized that the underrepresentation of

minorities in broadcasting stemmed from racial discrimination,

and therefore “must be understood to have viewed the sort of

- ehancement used here as a valid remedial measure,” 735 F.2d

ow 613-014. Finally, the majority concluded that City of Rich-

rvond v. J.A. Croson Co., 109 S. Ct. 706 (1989), did not under-

mine the validity of West Michigan or call into question the FCC's

minority preference policy. Pet. App. 12a-13a.

Judge Williams dissented from the court's constitutional

holding. Pet. App. 18a-46a. He concluded that this Court's re-

cent decisions in Croson and Wygant v. Jackson Bd. of Educ.,

476 U.S. 267 (1986), “largely undermined” the validity of West

Michigan and thus the constitutionality of the FCC's minority

preference policy as well. Pet. App. 18a. In his view, the FCC's

asserted rationale for its policy—promoting diversity in

programming — cannot survive Croson. See id. at 18a, 19a-30a.

Judge Williams further concluded that the alternative justifica-

tion of remedying prior discrimination could not be relied upon,

because it was asserted only by Rainbow — not the FCC — and in

any event might not meet the constitutional standards articulated

in Wygant and Croson. See id. at Wa-45a.*

SUMMARY OF ARGUMENT

1. The FCC’s policy classifies on the basis of race and is

therefore constitu .onally suspect. In City of Richmond v. J.A.

Croson Co., 109 5. Ct. 706 (1989), five Members of the Court

concluded that a state or local government's use of a racial

classification is subject to “strict scrutiny,” that is, the racial

classification must be “narrowly tailored” to achieve a “compelling

governmental interest.” In our view, a racial classification

* The court of appeals later denied petitions for rehearing, together with sug-

gestions of rehearing en banc, filed by both Winter Park and petitioner. Pet.

App. 96a-97a, 98a-99a. Judges Silberman, Williams, D.H. Ginsburg, and

Sentelle dissented from the denial of rehearing en banc /d. at 98a-99a_

7

adopted by the federal government, no less than a state or local

government, should be subject to the same exacting standard of

review. In deciding whether a federal preference program is

designed to a compelling governmental interest, a deter-

mination by Congress that there is a need for remedial race-

conscious action should be entitled to significant deference. This

additional measure of deference is appropriate, however, only

if Congress itself makes the critical determination that such a pro-

gram is required, and only if this determination has a

demonstrable basis in fact. And any such racial classification must

be narrowly tailored to achieve the compelling governmental in-

terest identified by Congress.

Il. A. This Court has endorsed only one sufficiently com-

pelling justification for a racial classification: remedying the ef-

fects of identified present or past racial discrimination. That

justification, however, may not be invoked to uphold the

preference policy at issue. First, Congress has not specifically

mandated that the Commission maintain a policy of granting

preferences to mimority applicants in comparative license pro-

ceedings in order to remedy prior discrimination. Second, even

if Congress could somehow be viewed as having advanced a

remedial justification, it cannot be said that Congress had suffi-

cient evidence before it of prior discrimination in the broadcasting

industry —let alone in the awarding of broadcast licenses —to

justify race-conscious relief. Finally, the FCC, the agency that

adopted the “policy” Congress has frozen, has consistently taken

the position that that policy is mot designed to remedy prior

discrimination in the broadcasting industry.

Even if it could be said that the FCC's preference policy was

designed to remedy prior identified discrimination, it is plainly

not “narrowly tailored” to achieve that alleged purpose. Neither

Congress nor the Commission has considered, much less tried,

less intrusive race-neutral means to increase minority ownership _

of broadcasting licenses. Moreover, the minority preference policy

is not aimed at correcting the actual effects of past discrimina-

tion, but instead reflexively confers an added benefit on all who

possess the requisite skin color or ethnic background.

B. The second asserted justification for the minority

preference policy is to further diversity of programming. But

the Court has never held that such a quest for programming diver-

sity ts a sufficiently compelling justification for the government's

use of a racial classification, and there is reason to question

whether that justification — as applied to the public broadcasting

spectrum — would so qualify. The notion that race or ethnicity

is a valid proxy for programming choices is precisely the type

of racial stereotyping that is anathema to basic constitutional

mcintes. |

Moreover, even if programming diversity could count as a com-

pelling governmental interest, it cannot be said that ether Con-

gress or the FCC has established the factual predicate necessary

to support the use of racial classifications to promote program-

ming diversity. The legislative history shows at most that Con-

gress relied on untested assumptions — about the existence of

distinct “minority” viewpoints, about whether those viewpoints

are underserved by today’s broadcasting industry, and about

whether increasing minority ownershi> would translate into more

“minority” programming. Nor does the administrative history of

the FCC's policy offer anything to fill “this evidentiary void.”

Pet. App. 23a (Williams, J., dissenting).

Putting aside the evidentiary difficulties with the “program-

ming diversity” rationale, the FCC's policy is not “narrowly

tailored” to accomplish that asserted goal. The policy's goal —

diverse programming — is too indeterminate to allow either the ©

Commission or any reviewing court to know whether i has ever

been attained.

ARGUMENT

THE FEDERAL COMMUNICATIONS COMMISSION'S

POLICY OF AWARDING A QUALITATIVE ENHANCE-

MENT FOR MINORITY OWNERSHIP IN COMPARATIVE

LICENSE PROCEEDINGS VIOLATES THE EQUAL PRO-

TECTION COMPONENT OF THE FIFTH AMENDMENT

1. Classifications By The Federal Government On The Basis Of

Race May Be Sustained Only If “Narrowly Tailored” Te

Achieve A “Compelling” Interest

A. The federal policy at issue in this case gives a preference

to Black, Hispanic, Oriental, Indian, Eskimo, and Aleutian ap-

plicants for broadcast licenses. It plainly classifies on the basis

9

of race and is thus in tension with the fundamental principle em-

bodied in the guarantee of equal protection that skin color and

ethnic origin are generally inappropriate bases upon which to rest

official distinctions between people. Brown v. Board of Educ.,

347 U.S. 483, 493-495 (1954); Bolling v. Sharpe, 347 U.S. 497,

499-500 (1954); Strauder v. West Virginia, 100 U.S. 303, 307-308

(1880). Accordingly, under this Court’s equal protection cases,

the FCC’s preference policy is constitutionally suspect. See, e.g.,

Palmore v. Sidoti, 466 U.S. 429, 432, 433 (1984).

The Court has determined, however, that government action

based on race, although suspect, is not always unconstitutional.

A court of equity may, for example, take race into account in

remedying past acts of intentional, unlawful discrimination on

the basis of race. See, e.g., United States v. Paradise, 480 U.S.

149 (1987); Swann v. Charlotte-Mecklenburg Bd. of Educ., 402

U.S. 1 (1971). Similarly, a competent governmental authority may

in certain circumstances take race into account when necessary

to remedy prior discrimination. See Wygant v. Jackson Bd. of

Educ., 476 U.S. 267, 277 (1986) (plurality opinion); see also |

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

Nevertheless, the Court has made plain that “ ‘[dJistinctions

between citizens solely be sese of their ancestry’ * * * [are] ‘odious

to a free people whose snstutions are founded upon the doc-

trine of equality.”” Loving v. Virginia, 388 U.S. 1, 11 (1967)

(quoting Hirabayashi v. United States, 320 U.S. 81, 100 (1943)).

On that account, the Court has ruled that, to withstand constitu-

tional scrutiny, a law classifying on the basis of race or ethnicity

ordinarily “must be justified by a compelling governmental in-

terest and must be ‘necessary . . . to the accomplishment’ ” of

that purpose. Palmore v. Sidoti, 466 U.S. at 432-433.

B. Last Term, a majority of the Court for the first time

“reach[ed] consensus on the appropriate constitutional analysis”

(Paradise, 480 U.S. at 166) to be applied where a state or local

government adopts a racial or ethnic preference in order to remedy

past discrimination. In City of Richmond v. J.A. Croson Co.,

109 S. Ct. 706 (1989), five Members of the Court concluded that

this use of race or ethnicity is subject to “strict scrutiny,” that

is, the racial or ethnic classification must be “narrowly

‘0

tailored” to achieve a “compelling governmental interest.” /d. at

720-721 (opinion of O’Connor, J., joined by Rehnquist, C.J.,

and White and Kennedy, JJ.); id. at 735 (Scalia, J., concurring

in the judgment).

As Justice O’Connor explained in Croson:

Absent searching judicial inquiry into the justification for

* * * race-based measures, there is simply no way of deter-

mining what classifications are “benign” or “remedial” and

what classifications are in fact motivated by illegitimate no-

tions of racial inferiority or simple racial politics. Indeed,

the purpose of strict scrutiny is to “smoke out” illegitimate

uses of race by assuring that the legislative body is pursu-

ing a goal important enough to warrant use of a aighly

suspect tool.

109 S. Ct. at 721; see also Wygant, 476 U.S. at 273 (plurality

opinion).

1. The first part of that constitutional analysis focuses on

the asserted “compelling governmental interest” supporting the

questioned classification, and involves two related inquiries: iden-

tifying the interest and determining whether it has a sufficient

basis in fact. A majority of the Court has thus far endorsed only

one justification for a racial preference that may in appropriate

circumstances be sufficiently compelling: the government’s in-

terest “in ameliorating, or eliminating where feasible, the disabling

effects of identified discrimination,” Regents of the University

of Cal. v. Bakke, 438 U.S. 265, 307 (1978) (opinion of Powell,

J.). See -Croson, 109 S. Ct. at 721-723 (plurality opinion); id. at

743-745 (Marshall, J., dissenting); Roberts v. United States

Jaycees, 468 U.S. 609, 624-625 (1984); see also Wygant, 476 U.S.

at 274 (plurality opinion).’

’ In addition, individual Members of the Court have suggested or found that

the promotion of “racial diversity” may be a sufficiently compelling justifica-

tion for the government to impose race-based measures, at least in the context

of promoting a diverse student body or a diverse faculty in higher education.

See Bakke, 438 U.S. at 311-315 (opinion of Powell, J.); Wygant, 476 U.S. at —

306 (Marshall, J., dissenting); id. at 315-317 (Stevens, J., dissenting); see also

id. at 286 (O'Connor, J., concurring in part and concurring in the judgment).

The Court has also established that the asserted compelling

justification for a racial classification must be based on “suffi-

cient evidence.” Wygant, 476 U.S. at 277 (plurality opinion); id.

at 286 (O’Connor, J., concurring in part and concurring in the

judgment); see Croson, 109 S. Ct. at 727 (opinion of the Court).

In Croson, the Court emphasized that there must be a “strong

basis in evidence for [the government’s} conclusion that remedial

action was necessary.” Jd. at 724 (opinion of the Court) (inter-

nal quotation marks and citation omitted). In other words,

“[bjecause racial characteristics so seldom provide a relevant basis

for disparate treatment, and because classifications based on race

are potentially so harmful to the entire body politic, it is especially

important that the reasons for any such classification be clearly

identified and unquestionably legitimate.” J/bid. (quoting

Fullilove, 448 U.S. at 533-535 (Stevens, J., dissenting)).

2. The second part of the constitutional analysis focuses on

whether a racial classification is “narrowly tailored” to promote

the compelling governmental interest. In this regard, two fac-

tors were specified by a majority of the Court in Croson and are '

particularly significant: (1) whether alternative race-neutral

remedies were considered and attempted before resorting to race-

conscious measures, see, e.g., Croson, 109 S. Ct. at 728; Wygant,

476 U.S. at 283 (plurality opinion); Fullilove, 448 U.S. at 463-467

(opinion of Burger, C.J.); id. at 511 (Powell, J., concurring),

and (2) whether the racial preference is limited to those who have

in fact suffered the disadvantage or discrimination. See, e.g.,

Croson, 109 S. Ct. at 728-729; id. at 734 (Stevens, J., concurring);

Paradise, 480 U.S. at 171 (plurality opinion); Wygant, 476 U.S.

at 276 (plurality opinion); Fullilove, 448 U.S. at 480-482, 486-488

(opinion of Burger, C.J.); id. at 510 (Powell, J., concurring).

The Court has identified other factors relevant to the “narrow

tailoring” inquiry as well, such as the flexibility and planned dura-

tion of the remedy, and the effect of the classification on inno-

cent third parties. Wygant, 476 U.S. at 282-283 (plurality opin-

ion); id. at 287 (O’Connor, J., concurring in part and concurr-

ing in the judgment); Fullilove, 448 U.S. at 514-515 (Powell, J.,

concurring). A thorough consideration of these factors is essen-

tial in order to ensure “that the means chosen ‘fit’ [the asserted]

12

compelling goal so closely that there is little or no possibility that

the motive for the classification was illegitimate racial prejudice

or stereotype.” Croson, 109 S. Ct. at 721 (plurality opinion).

C. In City of Richmond vy. J.A. Croson Co., supra, the Court

had no occasion to determine the standard of review applicable

to cases challenging racial preference programs adopted by the

federal government —a threshold issue in this case. And although

in Fullilove v. Klutznick, supra, the Court upheld a federal

minority business enterprise preference program against a facial

constitutional challenge, three separate opinions supported that

judgment — none of which commanded more than three votes —

and thus the Court did not resolve the preliminary question of

the appropriate standard of review. Compare 448 US. at 453-495

(opinion of Burger, C.J., joined by White and Powell, JJ.); with

id. at 495-517 (Powell, J., concurring); and id. at 517-522 (Mar-

shall, J., joined by Brennan and Blackmun, JJ., concurring in

the judgment).

In our view, racial classifications adopted by the federal govern-

ment must also withstand the “strict scrutiny” applied to those

adopted by state ond local governments. Thus, federal minority

preference prey owns, no less than state and local programs, must

serve a compeliing government interest and be narrowly tailored

to achieve that imerest. In applying this standard, however, we

believe that courts should give greater deference to a determina-

tion by Congress that there is a compelling need for remedial ac-

tion than would be accorded a similar determination by a state

or local governmental body.

1. Although the Equal Protection Clause by its terms applies

only to the States and not to the federal government, it is settled

by the decisions of this Court that equal protection analysis under

the Fifth Amendment is generally the same as that under the Four-

teenth Amendment. Buckley v. Valeo, 424 U.S. 1, 93 (1976);

Weinberger v. Wiesenfeld, 420 U.S. 636, 638 n.2 (1975); Johnson

v. Robison, 415 U.S. 361, 364-365 n.4 (1974). To be sure, the

two protections are not coextensive for all purposes. See Hamp-

ton v. Mow Sun Wong, 426 U.S. 88, 100 (1976). But this Court

has never suggested that the two Clauses supply different degrees

of protection to individuals who have been disadvantaged

13

by official government action based on their race. See Bolling

v. Sharpe, 347 U.S. at 499-500. To the contrary, the understand-

ing that all racial classifications are suspect and must be subjected

“to the most rigid scrutiny” was first articulated in a case involv-

ing the federal government, Korematsu v. United States, 323 U.S.

214, 216 (1944), and the Court has specifically reaffirmed in the

context of minority preferences that “the reach of the equal pro-

tection guarantee of the Fifth Amendment is coextensive with

that of the Fourteenth.” Paradise, 480 U.S. at 166 n.16 (plurali-

ty opinion); id. at 196 (O’Connor, J., joined by Rehnquist, C.J.,

and Scalia, J., dissenting). Indeed, from the point of view of an

individual who has been penalized because of his race, it mat-

ters little whether the racial classification is sponsored by the

federal government or by some other governmental entity. Ac-

cordingly, for the same reasons that Croson concluded that

preferential racial classifications must be subject to strict scrutiny

under the Fourteenth Amendment, we believe that such classifica-

tions must be subject to the same exacting standard of review

under the Fifth Amendment.

At the same time, this Court’s decisions in Fullilove and Croson

Suggest that there are important differences between the Con-

gress and other governmental bodies in terms of their power to

rectify prior discrimination. Congress, unlike state and local

legislative bodies, is a national representative body. It may

legislate only with the approval of both Houses — selected by con-

stitutional design on different representational bases— and the

concurrence of the President, who is “elected by all the people.”

Myers v. United States, 272 U.S. 52, 123 (1926). Thus, it may

fairly be said that Congress is more likely than other, more

parochial bodies to exercise its powers in ways that take into ac-

count the interests of all citizens. See generally The Federalist

No. 10, at 77 (J. Madison) (C. Rossiter ed. 1961).

In addition, Section 5 of the Fourteenth Amendment specifical-

ly empowers Congress “to enforce, by appropriate legislation,”

the guarantee of equal protection set forth in Section | of that

Amendment. When Congress exercises its “unique remedial

powers” under the Fourteenth Amendment, Croson, 109 S. Ct.

at 718 (opinion of O'Connor, J.), its identification of a compelling

14

need to assist the States in overcoming discrimination in a par-

ticular industry or segment of the economy should be accorded

greater deference than a similar finding by a state or local

legislative body. See Croson, 109 S. Ct. at 718-719 (opinion of

O'Connor, J.); Fullilove, 448 U.S. at 472-480 (opinion of Burger,

C.J.); id. at 499-506 (Powell, J., concurring). As Justice O'Connor

concluded in Croson, 109 S. Ct. at 719, the Section 5 power “may

at times also include the power to define situations which Cén-

gress determines threaten principles of equality and to adopt pro-

phylactic rules to deal with those situations.” See also Katzen-

bach v. Morgan, 384 U.S. 641, 651 (1966).

2. Although Congress has special powers to enforce the

guarantée of equal protection, it is also of course subject to that

guarantee. Thus, neither the structural guarantees of the Con-

stitution, nor the express grant of “unique remedial powers” under

Section 5 of the Fourteenth Amendment, can eliminate the need

for careful judicial scrutiny of any program adopted by the federal

government that classifies individuals by race. Accordingly, there

remain important limitations on Congress's power to adopt racial

preferences that have direct relevance in this case.

First, the reasons identified by the Court for giving greater

deference to a congressional determination of a compelling need

for a racial classification apply uniquely to Congress, not to other

components of the federal government. Thus, neither Fullilove

nor Croson stand for the proposition that a federal administrative

agency, acting under a general grant of authority to regulate a

particular industry in the public interest, should be entitled to

any special deference if it makes a finding of prior discrimina-

tion within that industry, or identifies other potentially compelling

governmental interests that might support the use of racial

classifications. Cf. NAACP v. FPC, 425 U.S. 662 (1976). Con-

gress may of course rely “on the administrative agency to flesh

out [the] skeleton, pursuant to delegated rulemaking authority”

(Fullilove, 448 U.S. at 468 (opinion of Burger, C.J.)); but, given

the suspect nature of any program based on racial classifications,

Congress itself must make the “critical determinations.” /bid. Cf.

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

15

Congress acts only by enacting legislation, this should ordinari-

ly mean that Congress must make its intention to require the use

of a remedial racial classification “unmistakably clear in the

language of the statute.” Delimuth v. Muth, 109 S. Ct. 2397, 2400

(1989) (citation omitted).

Second, the Court's decisions also indicate that a determina-

tion by Congress that there is a compelling need for racial

preferences may not be made in a vacuum. Chief Justice Burger

concluded that the minority preference program at issue in

Fullilove was within Congress’s power only upon finding, after

an extended review of the legislative background, that “Congress

had abundant evidence from which it could conclude that minori-

ty businesses have been denied effective participation in public

contracting opportunities by procurement practices that

perpetuated the effects of prior discrimination.” 448 U.S. at

477-478. Justice Powell similarly concluded that Congress must

have “made findings adequate to support its determination that

minority contractors have suffered extensive discrimination.” Jd.

at 502. Ordinarily, of course, a reviewing court will not demand

that Congress have a factual basis in support of whatever legisla-

tion it enacts. See Vance v. Bradley, 440 U.S. 93, 111 (1979).

But as the Court has stated in an analogous context, “[w}hen the

Federal Government asserts an overriding national interest as-~

justification for a discriminatory rule which would violate the

Equal Protection Clause if adopted by a State, @ue process re-

quires that there be a legitimate basis for presuming that the rule

was actually intended to serve that interest.” Hampton v. Mow

Sun Wong, 426 U.S. at 103.

Third, while significant deference should be given to a con-

gressional determination that there is a compelling need for a

remedial racial preference, a similar degree of deference is not

appropriate in deciding whether the particular remedy chosen by

Congress is “narrowly tailored” to achieve that compelling in-

terest. As Justice Powell has observed, Congress's “special at-

tribute as a legislative body lies in its broader mission to investigate

and consider all facts and opinions that may be relevan: to the

resolution of an issue.” Fudlilove, 448 US. at 502-503 (concurring

opinion). Congress may thus be said to have special competence

aa

to determine whether particular sectors of the national economy

have been historically afflicted by discrimination, and to assess

the continuing relevance of this discrimination in the present day.

But Congress does not enjoy a similar advantage in ensuring that

remedies adopted for rectifying past wrongs are formulated in

such a way as to minimize the intrusion upon individual rights.

Cf. Katzenbach v. Morgan, 384 U.S. at 668-670 (Harlan, J.,

dissenting).

As Chief Justice Burger observed in Fullilove, it is important

that there be a “careful judicial evaluation to assure that any con-

gressional program that employs racial or ethnic criteria to ac-

complish the objective of remedying the present effects of past

discrimination is narrowly tailored to the achievement of that

goal.” 448 U.S. at 480. Accordingly, in reviewing the minority

set-aside in that case, he took into account Congress's considera-

tion of alternative race-neutral means and the actual flexibility

and duration of the measure adopted, stressing the program's

limitation to correcting the actual effects of discrimination. /d.

at 463-476, 480-482, 487-488 .* Likewise, Justice Powell careful-

ly reviewed the congressional program in light of factors similar

to those identified by the Chief Justice. Jd. at 510-515. The

understanding that any racial classification adopted by Congress

must be “narrowly tailored” to achieve a valid remedial purpose

is reinforced by opinions of individual Members of the Court

in Croson. Justice O'Connor, joined by the Chief Justice and

Justice White, expressly recognized that the “fine tuning” of the

minority set-aside in Fullilove, see note 8, supra, was a constitu-

tional prerequisite. See 109 S. Ct. at 718. And Justices Stevens,

* Chief Justice Burger emphasized, for example, that the minority set-aside

provision “cannot pass muster unless * ° * u provides a reasonable assurance

that application of racial or ethnic criteria will be limited to accomplishing the

remedial objectives of Congress and that misapplications of the program will

be promptly and adequately remedied admunistratively ” Fullilove, 448 U S

at 487. He then explained that the program's racial presumption “may be re-

butted,” ibid _, that there was available a “complaint procedure * * * for repor-

tong ‘unjust participation by an enterprise * * * in the * * * program,” ” id. at

488. and ‘hai no minority business enterprise may “explou the remedial aspects

of the program by charging an unreasonable price, 1 ¢ . a price not attributable

to the present effects of past discrimination,” ibid

17

Kennedy, and Scalia also acknowledged in separate opinions that

such tailoring of a racial classification to the asserted remedial

purpose was constitutionally essential. See id. at 730 n.1 (Stevens,

J., concurring in part and concurring in the judgment); id. at

734 (Kennedy, J., concurring in part and concurring in the judg-

ment); id. at 735-739 (Scalia, J., concurring in the judgment).’

3. In sum, a racial classification adopted by the federal

government, no less than a state or local government, should be

subject to an exacting standard of review. Like any racial

classification, a federal preference program must be designed to

achieve a compelling governmental interest. In deciding whether

such an interest exists, a determination made by Congress

there is a need for remedial race-cogscious action is entitled to

significant deference. Bui this additional measure of deference

is appropriate only if Congress itself makes the critical determina-

tion that such a program is required, and only if this determina-

tion has an adequate basis in fact. And any such racial classifica-

tion must be narrowly tailored to achieve the compelling govern-

mental interest identified by Congress.

ll. The Federal Communications Commission's Policy Of

Awarding A Quelitative Enhancement For Minority

Ownership In Comparative License Proceedings Is Not

“Narrowly Tailored” To Achieve A “Compelling” Interest

The question for decision in this case, therefore, has two com-

ponents: first, whether any “compelling” governmental interest

* Analogous support for this conciusion is also supplied by the Court's deci

sions assessing the constitutionality of gender classifications in federal statutes

The Court has always required the same degree of “fit” between a gender

classification and the governmental interest asserted in support of that classifica

tion, whether the statute was enacted by Congress or by one of the States.

Rostker v. Goldberg, 453 U.S. 57, 69-70 (1981). Moreover, the Court has ap-

pled the same exacting standard of review to federal gender classifications even

when the discrimination is directed against men rather than women, and even

when a remedial objective has been asserted in support of the differential treat

ment. See Califano v. Goldfarb, 490 U.S. 199, 210-212 (1977) (plurality opin-

ion); Weinberger v. Wiesenfeld, 420 U.S. 636, 642-645 (1975), Frontiero v.

Richardson, 411 U.S. 677, 682-688 (1973) (plurality opinion). These authorities

suggest that the mere invocation of a “remedial” justification for a racial

classification should not result in any relaxation of the requirement that such

classifications be “narrowly tailored ”

a

may be found to justify the FCC’s policy of awarding preferences

in comparative license proceedings on the basis of race or ethnic

origin; and second, whether that policy is “narrowly tailored”

to achieve an identified compelling governmental purpose. The

Commission's policy fails both tests.

A. |. So far, this Court has endorsed only one sufficiently

compelling justification for a racial classification, namely,

remedying the effects of identified present or past racial

discrimination. See p. 10, supra. Although the majority below

relied upon this justification in upholding the Commission's policy

(Pet. App, 10a-1 1a), we do not believe that asserted interest may

be invoked here for several reasons.

a. Congress has not specifically mandated that the Commis-

sion maintain a policy of granting preferences to minority ap-

plicants in comparative license proceedings in order to remedy

prior discrimination. Thus, it cannot be said that Congress has,

through appropriate statutory language, made an authoritative

determination that there is a compelling need to rectify the ef-

fects of discrimination in the broadcasting industry. See pp. 14-15,

supra.'®

'® We note that even if Congress had legislated with the requisite specificity,

it would be questionable whether such legislation could be characterized as an

exercise of Congress's powers under Section § of the Fourteenth Amendment.

If Congress found that the FCC had maintained discriminatory policies in

awarding broadcast licenses, the resulting inequalities would be a product of

unlawful federal action remediable under the Fifth Amendment, rather than

unlawful state action subject to Sections | and § of the Fourteenth Amend.

ment Moreover, given that the broadcasting industry has been pervasively

regulated by the FCC since 1934 (and by the Federal Radio Commission before

that under the Radio Act of 1927, see Act of Feb. 23, 1927, ch. 169, 44 Stat.

1162), ts difficult to umagine what unlawful action taken by the States might

give rise to inequaly” =n tne by Oadcasting industry, except for the most general

“societal discrimination.” See pp. 21-22, infra. Section $ of the Fourteenth

— Amendment, however, gives Congress power to legisiete only with respect to

Section | of that Amendment, governing state a» opposed to federal action

This case therefore differs from Fullilove, where Congress couid be said to

be acting under Section $ to rectify past discrimination in the awarding of public

works contracts Dy the States. In any event, the Court need not reach the broader

question whether Congress would have the power to adopt remedial race.

conscious legislation for the broadcasting industry under Section $ of the

The only congressional action directly relevant to this program

is the enactment of three successive appropriations riders, each

of which provides that the FCC is not to spend appropriated funds

during a given fiscal year “to repeal, to retroactively apply changes

in, or to continue a reexamination of [the Commission's minori-

ty preference policy}.” 101 Stat. 1329-31 to 1029-32; 102 Stat.

2216-2217; 103 Stat. 1020-1021. The appropriations riders, by

their terms, do not purport to mandate the use of a particular

racial classification; nor do they charge the Commission with any

remedial duties or make any findings of prior discrimination af-

fecting the broadcasting industry. At most, they direct that the

status quo be maintained with respect to the Commission's

policies — policies that have always been grounded in the “pro-

gramming diversity” rationale, rather than in any finding of prior

discrimination (see p. 22, infra). That call for “a kind of mental

standstill,” as Judge Williams observed, Pet. App. 35a, scarcely

resembles a legislative directive requiring the use of a racial

classification in comparative license proceedings. See Hampton

v. Mow Sun Wong, 426 U.S. at 114-116; see also TVA v. Hill,

437 U.S. 153, 190-191 (1978)."'

The sparse legislative history of the appropriations riders con-

firms that Congress's delphic action cane “ be regarded as an

effort to remedy identified pasi or present discrimination. For

example, the Senate Appropriations Committee, which was re-

Fourteenth Amendment (or for that matter, under Section 2 of the Thirteenth

Amendment, see Jones v. Alfred H. Mayer & Co., 992 U.S. 409 (1968)), since

in our view it is clear that Congress has not attempted to do so with the re-

quisite specificity or with the kind of supporting evidence required by Fullilove.

'' In 1982, Congress amended the Communications Act to authorize the FCC

to award heenses under a random selection sysiem, and specifically directed

the Commission, in creating any such lottery procedure, to grant “an additional

significant preference * * * to any apphcant controlled by a member or members

of a minority group.” 47 U.S.C. 3090 3A). By its terms, however, that pro-

vision does not purport to require the Commission to grant a semilar preference

im comparative proceedings, and the pertinent legislative history contains no

suggestion that Congress so intended. See, e.g, HR Conf Rep. No. 765, 97th

Cong., 2d Sess. 43-44 (1982); H.R. Conf. Rep. No. 208, 97th Cong., Ist Sess

897 (1981)

sponsible for the language in the 1987 rider, stated that the Com-

mission's reexamination of its preference policy was “unwar-

ranted,” in part because

[t}he Congress has expressed its support for [that policy]

in the past and has found that promoting diversity of owner-

ship of broadcast properties satisfies important public policy

goals. Diversity of ownership results in diversity of program-

ming and improved service to minority * * * audiences.

S. Rep. No. 182, 100th Cong., Ist Sess. 76 (1987); see also S.

Rep. No. 388, 100th Cong., 2d Sess. 79 (1988). 'adeed, the only

Committee Report that mentions even in passing a possible

remedial justification for the Commission's policies is that

associated with a different minority preference policy —the

preference applicable to a lottery system. See 47 U.S.C.

309i 3A) and notes 3 and 11, supra. In these circumstances,

the legislative record does not suggest, let alone confirm, that

Congress made any “considered decision” (Fullilove, 448 U S.

at 473) that minority preferences are necessary in comparative

hearings to remedy the effects of racial discrimination in the

broadcasting industry.

b. Even if Congress could somehow be viewed as having

adopted a remedial justification, it cannot be said that Congress

had sufficient evidence before it of prior discrimination in the

broadcasting industry to justify race-conscious relief. See, e.g.,

Croson, 109 §. Ct. at 727 (opinion of the Court); Wygent, 476

U.S. at 277 (plurality opinion); Fullilove, 448 U.S. at $33-535

(Stevens, J., dissenting). To the contrary, the sparse ‘egislative

record associated with the appropriations riders plainly shows

that Congress had no basis — certainly no articulated basis — for

finding that either the Commission or the broadcasting industry

in general has engaged in racially discriminatory practices that

hampered minorities’ ability to own broadcasting licenses. See,

¢.g., Pet. App. 38a-39a. Nor does the bare mention of a possi-

ble remedial justification in the legislative history of the lottery

program constitute the kind of factual predicate necessary to sus-

tain the use of a racial classification. Compare Fullilove, 448 US.

at 463-467 (opinion of Burger, C.J.) (relying on extensive

legislative history of related legislation).

21

Indeed, as far as we are aware, the only argument that could

be advanced in support of the Commission's preference policies

as a remedial measure would be that, because of prior societal

discrimination, minority groups have fewer financial resources

than nonminorities, and thus have not been able to purchase the

radio and television stations that regularly become available on

the resale market.'? But this Court has made clear in the context

of state and local preference policies that “societal discrimina-

tion,” standing alone, cannot justify a racial classification. See

Croson, 109 S. Ct. at 723 (plurality opinion). As Justice Powell

observed in Wygant:

Societal discrimination, without more, is too amorphous

a basis for imposing a racially classified remedy. * * * No

one doubts that there has been serious racial discrimination

in this country. But as the basis for imposing discriminatory

476 U.S. at 276 (plurality opinion); accord Bakke, 438 U.S. at

307 (opinion of Powell, J.).

While Congress can no doubt legislate more broadly than state

and local bodies, this Court has never held that generalized

societal discrimination, by itself, is sufficient to sustain a federal

minority preference program. In sustaining a federal minority

set-aside program for federally funded state public works pro-

jects in Fullilove, the Court was careful to note that Congress

had before it evidence that prior discrimination had infected the

construction industry, and therefore justified the exercise

'? Large numbers of radio and television stations are transferred each year

im private transactions that appear to be routinely approved by the FOC. In-

deed, based on the FCC's estumate that approxmately one-half of all transfer

apphcations appr: sd each year reflect station sales (as opposed to reorganiza

tions), & would appear that approximately 9% of all broadcast stations

(representing roughly 1000 radio stations and 250 television stations) are sold

mm any given year (based on averages over the past 10 years) See Broadcast Mass

Media Apphcation Statistics, FCC Ann Rep. (Fiscal Years 1979-1988) Ac-

cordingly, ts reasonable to assume that the principal umpediment to increased

minority owners up of broadcasting outlets in today's market ts the fact that

members of minority groups have fewer of the financial resources needed to

acquire and operate radio and television stations

22

of Congress's remedial powers. See 448 U_S. at 456-467 (opinion

of Burger, C.J.); id. at 502-506 (Powell, J., concurring); i. at

$20 (Marshall, J., concurring in the judgment). Here, there can

be no clam that Congress had before i evidence suggesting that

minorities have been denied any opportunity to acquire broad-

casting facilities because of official or private acts of discrimina-

tion. This is rather a case like Crason, in which “[t}here is nothing

approaching a pnma facie case of constitutional or statutory viola-

tion by enyone” im the broadcasting industry. 109 S. Ct. at 724

(opmnion of the Court).

c. Finally, the FOC, the agency that promulgated the “policy”

Congress has frozen, has consistently taken the position that that

policy 's mot designed to remedy pnor discrimination in the broad-

casting industry. In this case, for example, the Commission has

made plain that its “goal in implementing the preference policy

*** has not been to remedy prior discrimination against

minorities or to provide remedial benefits.” FOC C.A. Br. 30;

see Pet. App. lla n.6, 33a. That position stems from the fact

that “[t}here has never been a finding, nor * * * even an allega-

tion, that the FCC engaged in prior discrimination against racial

minorities * * * in its licensing process.” Jd. at 33a. According-

ly, under settled principles of administrative law, the racial

classification at issue here may not be sustained on the basis of

any agency finding of the need for remedial action. See, ¢.g.,

SEC v. Chenery Corp.. 318 U.S. 80, 88 (1943).

2. Even if it could be said that the FCC's preference policy

was adopted to remedy pnor identified discrmunation, i 1s plainly

not “narrowly tailored” to achieve that alleged purpose. First,

nether Congress nor the Commission has considered, much less

tned less mtrusive race-neutral means to increase Munonty Owner -

ship of broadcasting licenses. See, ¢.g., Croson, 109 S. Ci. at

728. Fullilove, 448 U.S. at 463-467 (opinion of Burger, C.J .);

id. at S11 (Pewell, J., concurring). Before 1978, the Commis-

sion had adopted vanous race-neutral pohcies designed to mcrease

diversity of programming, see 1978 Policy Statement, 68 F.C.C.

2d at 980, 981; but it has never undertaken any race-neutral steps

to augment diversity of ownershy. euther prior to adopting its

preference policies or since then. Moreover, the minority pref-

23

erence policy is not aimed at correcting the actual effects of past

discrimination. See, e.g., Croson, 109 S. Ct. at 728-729; id. at

734 (Stevens, J., concurring in part and concurring in the judg-

ment); Paradise, 480 U.S. at 171 (plurality opinion); Fullilove,

448 U.S. at 480-482, 486-488 (opinion of Burger, C.J.); id. at

$10 (Powell, J., concurrirg). In particular, the policy, as applied,

does not permit an inquiry to determine whether any particular

minority applicant was in fact not disadvantaged by past

discrimination. As Judge Williams observed, “it is hard to see

how a program can be ‘narrowly tailored’ as a remedy for societal

discrimination if competitors have no opportunity to show that

individual beneficiaries have suffered no impairment of their

license-securing ability attributable to that discrimination.” Pet.

App. 43a-44a.

To be sure, as the court of appeals pointed out, “minority

ownership is simply one factor among several that the Commis-

sion takes into account in the award of broadcast licenses,” Pet.

App. l4a, and the Commission will not even consider that fac-

tor where an applicant has a clear quantitative advantage over

its rivals. See p. 2, supra. But the fact that explicit consideration

of race or ethnic background may not be dispositive in every case

does not mean that such consideration is “narrowly tailored” in

a constitutionally relevant sense. For example, it does not mean

that the policy will be applied only to those who are truly disad-

vantaged or only when it will not injure innocent third parties.

As this case suggests, minority ownership can be the determinative

factor in a comparative license proceeding, whether or not a

minority applicant can show he has been disadvantaged. Pet.

App. 10a. And as Judge Williams noted, the FCC’s policy can

clearly injure third parties; indeed, “Rainbow's victory, in which

the minority preference was dispositive, deprived the other com-

petitors of their only chance for a new license for the foreseeable

future.” Jd. at 44a. Thus, the fact that the Commission's

preferences do not affect every case at most limits the class of

those with standing to challenge the policy to those actually in-

jured by its application to them.

B. 1. The second asserted justification for the minority

preference policy — and the one on which the Commission prin-

24

cipally relies —is to further diversity of programming. See, e.g.,

Pet. App. lla n.6, 19a. This asserted justification is clearly dif-

ferent from any of the rationales previously considered by this

Court in support of minority preference programs, including the

interest in promoting “racial diversity” in higher education, which

Justice Powell found to be a compelling governmental interest

in his opinion in Bakke. See 438 U.S. at 311-315; see also Wygant,

476 U.S. at 306 (Marshall, J., dissenting); id. at 315-317 (Stevens,

J., dissenting). No issue is presented here as to whether promoting

“racial diversity” may ever constitute a compelling governmen-

tal interest;'* the only question is whether racial preferences may

be adopted because of their asserted instrumental value in pro-

moting an entirely different type of “diversity” —diversity in

programming.

a. There is reason to question whether that justification, as

applied to the public broadcast spectrum, may ever qualify as

a compelling governmental interest. This Court has long recog-

nized that “the widest possible dissemination of information from

diverse * * * sources is essential to the welfare of the puLiic” and

is plainly a legitimate governmental interest. Associated Press v.

United States, 326 U.S. 1, 20 (1945); see, e.g., FCC v. National

Citizens Comm. for Broadcasting, 436 U.S. 775, 795 (1978).

Nevertheless, the Court has never held that such a quest for

diverse information is a sufficiently compelling justification for

the government’s use of a racial classification. Cf. Miami Herald

Publishing Co. v. Tornillo, 418 U.S. 241 (1974). “Programming

diversity,” and the related notions of “minority” or “nonminori-

ty” programming, are “elusive concepts, not easily defined let

'? The FCC has not suggested that it may seek to promote diverse owner-

ship as an end in itself. As Justice Powell stated, “(preferring members of any

one group for no reason other than race or ethnic origin is discrimination for

its own sake. This the Constitution forbids.” Bakke, 438 U.S. at 307; accord

Croson, 109 §. Ct. at 721 (plurality opinion); id. at 730-734 (Stevens, J., con-

curring in part and concurring in the judgment); id. at 735, 739 (Scalia, J.,

concurring in the judgment). The FCC's programming diversity rationale is

more akin to the argument that preferences should be given to minority ap-

plicants to medical schools in order to ensure a sufficient number of doctors

willing to serve minority communities — a justification Justice owell specifically

rejected as unwarranted by the evidence in Bakke. See 435 U.S. at 310-311.

25

alone measured without making qualitative judgments objec-

tionable on both policy and First Amendment grounds.” National

Citizens Comm. for Broadcasting, 436 U.S. at 796-797.

Moreover, the programming diversity rationale appears to require

official identification and labelling of, among other things,

“Black,” “Hispanic,” and “Aleutian” programming and view-

points, and indulging in the assumption that we can tell how

someone will think and act based solely on the color of his skin.

This type of racial stereotyping is anathema to fundamental con-

stitutional principles. E.g., Croson, 109 S. Ct. at 721 (plurality

opinion); id. at 730-734 (Stevens, J., concurring in part and con-

curring in the judgment); id. at 735, 739 (Scalia, J., concurring

in the judgment); Bakke, 438 U.S. at 307 (opinion of Powell,

J.); Wygant, 476 U.S. at 274-276 (plurality opinion); Loving v.

Virginia, 388 U.S. at 10-11.

b. Even if programming diversity might in theory qualify as

a compelling governmental interest, the next question would be

whether Congress itself has adopted this justification.'* Here

again, Congress has never enacted a statute expressly directing

or authorizing the Commission to prefer minorities in comparative

license proceedings in order to increase programming diversity.

It has only directed the Commission to preserve the status quo

with respect to an FCC policy originally justified on such

grounds. See pp. 19-20, supra. To be sure, the legislative history

of the various appropriations riders suggests that individual

members of Congress approved of that rationale, see, e.g.,

'* Questions about whether Congress could be said to have the power to adopt

a minority preference policy for the broadcasting industry under Section § of

the Fourteenth Amendment (see note 10, supra) are compounded when the ra-

tionale for such a policy is based on the need to enhance programming diversi-

ty, rather than to remedy past discrimination. The Section § power extends

only to the enforcement of Section I's guarantee that “No State shall * * * deny

to any person within its jurisdiction the equal protection of the laws.” The goal

of programming diversity, however, is not derived from the Equal Protection

Clause, but rather from the policies of the Federal Communications Act, Thus,

although the Court need not reach the question, we think it very doubtfuPehat

a congressionally mandated program of minority preferences designed to

enhance the diversity of programming could be justified as an exercise of Con-

gress’s power under Section 5.

26

S. Rep. No. 182, 100th Cong., Ist Sess. 76 (1987); 134 Cong.

Rec. $10,021 (daily ed. July 27, 1988) (statement of Sen. Holl-

ings); 133 Cong. Rec. $14,395 (daily ed. Oct. 15, 1987) (state-

ment of Sen. Lautenberg). But Congress may work its will only

by enacting legislation, cf. INS v. Chadha, 462 U.S. 919, 952

(1983), and general statements contained in the legislative

history — which were not voted on by the Congress, perhaps not

even seen by many of its members, and certainly not presented

to the President — cannot substitute for an express statutory pro-

vision mandating the use of preferences. See pp. 14-15, supra

cf. Tafflin v. Levitt, No. 88-1650 (Jan. 22, 1990), slip op. 3-4

(Scalia, J., concurring).

c. In any event, even if it could be said that Congress had

expressly directed the Commission to award minority preferences

in order to enhance programming diversity, it cannot be said that

Congress had an adequate basis in fact to support the imposis”

tion of such an inherently suspect racial classification. As Judge

Williams observed (see Pet. App. 22a), in order to demonstrate

the need for racial preferences on this score, it would be necessary

to show three things: (1) that different racial or ethnic groups

have distinctive listening or viewing tastes; (2) that one or more

of these distinctive racial or ethnic tastes are being undersupplied

by today’s broadcasting industry; and (3) that increasing the

percentage of minority owners would overcome the shortage of

programming that serves these distinctive tastes. To the extent

that Congress even perceived the need to resolve these questions,

however, it merely assumed the answers. There is scattered anec-

dotal evidence offered by various individuals and interest groups

in congressional hearings that might support one or more of these

propositions.'’ But the pertinent dimensions of the problem

'’ See Minority Ownership of Broadcast Stations: Hearing Before the Sub-

comm. on Communications of the Senate Comm. on Commerce, Science, and

Transportation, Wist Cong., Ist Sess. (1989) [/989 Hearing); Minority-Owned

Broadcast Stations: Hearing on H.R. $373 Before the Subcomm. on Telecom.

munications, Consumer Protection, and Finance of the House Comm. on

Energy and Commerce, 9h Cong., 2d Sess. (1986); Minority Participation

in the Media: Hearings Before the Subcomm. on Telecommunications, Con-

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

98th Cong., Ist Sess. (1983); Parity for Minorities in the Media: Hear-

27

remained “unmeasured, unexplored, or unexplained” by Congress.

Croson, 109 S.Ct. at 735 (Kennedy, J., concurring in part and

concurring in the judgment). Where, as here, Congress has not

affirmatively enacted legislation based on any finding that race

is a reliable proxy for programming choices, such an unfocused

gathering of information is an inadequate basis for invoking an

otherwise suspect racial classification.'*

Nor does the administrative history of the FCC policy offer

anything to fill “this evidentiary void.” Pet. App. 23a (Williams,

J., dissenting). The Commission initially adopted its policy not

after any careful study of the need for additional programming

diversity and the relationship between ownership and program-

ming, but rather at the direction of the court of appeals for the

District of Columbia Circuit. See pp. 2-3, supra. The court of

appeals, in turn, merely assumed that there was inadequate

“minority” programming, and that increased minority ownership

would rectify this shortcoming. See Garrett, 513 F.2d at 1063.

The administrative record compiled by the Commission, such

as it is, confirms that the Commission also acted on the basis

ing on HR. 1155 Before the Subcomm. on Telecommunications, Consumer

Protection, and Finance of the House Comm. on Energy and Commerce, 98th

Cong., Ist Sess. (1983).

'* In the court of appeals, the Commission suggested that Congress could

have properly relied on a recent report filed by the Congressional Research

Service that purports to document a correlation between minority ownership

and diverse programming. Congressional Research Service, Minority Broad-

cast Station Ownership and Broadcast Programming: Is There A Nexus? (June

29, 1988); see FCC C_A. Br. 46-47. That report, for the reasons stated by Judge

Withams (see Pet. App. 23a-29a), is so fundamentally flawed as to deprive it

of any significance.

In any event, apart from one passing reference to that report in the perti-

nent legislative record, see 134 Cong. Rec. $10,021 (daily ed. July 27, 1988)

(statement of Sen Hollings), there are no indications that Congress even con-

sidered, let alone accepted, the tentative findings in the CRS survey in connec-

hon with mamtaining the appropriations prov.sion blocking the FCC's inquiry

proceeding. Indeed, or Inouye, a leading proponent of the Commission's

minority preference policies, recently acknowledged that Congress “need|s} to

demonstrate that minority * * * ownershup of broadcast stations does, in fact,

promote diversity in the views presented on the airwaves.” /989 Hearing at 2.

of untested assumptions.'’ In fact, the Commission has candid-

ly admitted the lack of an evidentiary predicate for the preference

policy. In 1986, the FCC conceded that no Commission pro-

ceeding establishes as a fact that

the race * * * of an owner necessarily has a direct nexus to

program content. * * * The substantial deference normal-

ly accorded the Commission's judgmental and predictive

determinations cannot justify reliance on suspect classifica-

tions to enhance program diversity in the absence of a clear

and specific foundation upon which to base its conclusion.

Here the agency needs a factual basis to support the assumed

nexus, but none has ever been established.

Brief for FCC on Rehearing En Banc at 27-28, Steele v. FCC,

770 F.2d 1192 (D.C. Cir. 1985). It was precisely for that reason

that the Commission initiated its inquiry proceeding in December

1986. See note 1, supra. Congress, however, terminated that in-

vestigation, see note 4, supra, and thus the Commission has been

unable to determine whether the asserted purpose of the minori-

ty preference policy adopted over a decade ago has or ever had

any factual support.'*

'’ For example, the /978 Policy Statemen’, 68 F.C.C.2d at 981, quotes the

Task Force Report. The Task Force Report, im turn, relies on decisions such

as TV 9 and Garrett for ws endorsement of the proposition that increased manor

ty ownership will promote “greater diversity in the media.” Task Force Report

at 4; see id. at 4-6.

‘*Recent developments in broadcasting undermine the proposition that there

is a lack of diversity in (or that minority viewpoints are not being served by)

current programming. la abandoning the “fairness doctrine,” the Commission

determined intervention was no longer necessary to ensure balanced broadcast

presentation on matters of public interest because there are now a “sufficient

number of over-the-air television and radio voices to insure the presentation

of diverse opmmions on issues of public importance.” Report Concerning General

Fairness Doctrine Obligations of Broadcast Licensees, 102 F.C .C.2d 143, 208

(1985); see Syracuse Peace Council v. FCC, 867 F.2d 654 (D.C. Cir. 1989),

cert. denied, No. 89-312 (Jan. 8, 1990). The Commission has also recognized

that those changes in the marketplace

have resulted in [a] * * * rich array of information and entertainment pro-

gramming, and, further, that this phenomenon of increased competition

driving increased program diversity will continue. These findings demon-

29

ming diversity” rationale, that policy is not “narrowly tailored”

to achieve the asserted goal. The policy's goal—diverse

programming — is too indeterminate to allow either the Commis-

sion Or any reviewing court to know whether it has ever been

attained. This Court has made clear that such a feature, which

renders the preference policy potentially “ageless in [its] reach

into the past, and timeless in {its} ability to affect the future,”

Wygant, 476 U.S. at 276 (plurality opinion), precludes the use

of a racial classification. See, e.g., Croson, 109 S. Ct. at 723

(plurality opinion); Paradise, 480 U.S. at 171 (plurality opinion).

As Judge Williams observed, “[p}lainly there can be no assurance

of an end to the racial preference if there is no way — except the

Commission's conclusory say-so — of ascertaining when the goal

is reached.” Pet. App. 27a.

Apart from the substantial doctrinal flaws identified above,

the Federal Communications Commission’s use of a racial

classification cannot overcome a more fundamental hurdle — the

prerequisite of coherence. The Commission's use of racial

preferences remains today as much as ever a policy in search of

a purpose and an adequate supporting record. That policy was

conceived by a court, Congress has refrained from enacting af-

firmative legislation, and the Commission has been blocked from

completing the administrative inquiry proceeding it determined

was necessary to justify its own policy. This confused state of

affairs now leaves this Court to speculate about the reasons for

the policy and to piece together an appropriate supporting record.

Racial classifications, when imposed by the government, must

at a minimum reflect the deliberate judgment of a competent

strate that in the current environment there ts little if any basis to assume

that racial or gender preferences are essential to the availabiluy of

minorities’ and women’s viewpoints. Thus, rather than there being a record

to demonstrate that these preferences are essential, what record ts available

suggests otherwise

Brief for FCC on Rehearing En Banc at 26-27, Swele v. FCC, supre

30

authority that such measures are necessary for specific purposes.

Because that predicate is plainly absent here, the Commission’s

policy cannot be sustained.

CONCLUSION

The judgment of the court of appeals should be reversed.

Respectfully submitted.

JOHN G. ROBERTS, JR.

Acting Solicitor General*

JAMES P. TURNER

Acting Assistant Attorney General

THOMAS W. MERRILL

Deputy Solicitor General

ROGER CLEGG

Deputy Assistant Attorney General

MICHAEL R. LAZERWITZ

Assistant to the Solicitor General

FEBRUARY 1990

* The Solicitor General is disqualified in this case.

w US GOVERNMENT PRINTING OFFICE 1990— 262.203/00749