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

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TABLE OF CONTENTS

Page:

TABLE OF AUTHORITIES. ..00..0....00scccccescosssecssessessvessessssessesesooes mi

QUESTIONS PRESENTED. 0.0...0....0sccscceccccsseessesseesseessessseessessesses

INTEREST OF AMICI CURIAEB 2000000000000 ooo ccccseseessvessensevesee.

SUMMARY OF ARGUMENT ..00000000oo ooo ccccccccccessreeseeseeeseee

ARGUMENT

|. CONGRESS MAY PRESCRIBE THE CONSIDERATION

OF RACE TO PROMOTE DIVERSITY AMONG

BROADCAST LICENSEES AND TO AVOID THE

PERPETUATION OF THE EFFECTS OF PRIOR

EE ESL 5

A. Congress prescribed the continuation of the

comparative hearing policy initiated by the

B. Congress is empowered by the Constitution

to take actions to encourage full minority

Participation in the mainstream of American

economic and political life is a reality, as long

as those actions are clearly related to the

C. The comparative hearing policics further the

compclling goverment objective of diversity

D. The comparative heanng policy also furthers

the compelling government objective of

avoiding the perpetuation of the effects of prior

OEE 12

Il. THE COMPARATIVE HEARING POLICY

DOES NOT STIGMATIZE MINORITY BROADCAST

OO eeeeeeeeeeeeeeeeeEeteree 16

TABLE OF AUTHORITIES

Cases: Page:

Associated Press v. United States,

ES 3

Central Fia. Enterprises v. FCC, 683 F.2d 503,

ET 14

City of Richmond v. J.A. Croson Co.,

EE 3,7,17

ce 13

FCC v. National Citizens Committee,

a 8

Fullilove v. Klutznick, 448 U.S. 448 (1980).............. 3,7,8,13,16,17

Garrett v. FCC, $13 F.2d 1056 (D.C. Cir. 1975)..........ccccecceeeeeesee 6

Humphrey's Executor v. United States,

EEE 6

Plessy v. Ferguson, 163 U.S. 537 (1896) ..........cccccccccceseeeeenseneneees 12

Rostker v. Goldberg, 453 U.S. 57, 68 (1981) .........ccccccccccceceeneneeees 8

Scott v. Sandford, 60 U.S. (19 How.) 39 (1857) .......c.cccccccceeeeeees 12

Shurberg Broadcasting of Hartford, Inc. v. FCC,

Ck | 6,9

iv

Steele v. FCC, 770 F.2d 1192 (D.C. Cit. 1985)........cccccseceeseeveees 17

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

Cart. Gambed, 41D UB. FES CUPPA) .ccrercrececsecscescsecsecesecssesecsecsovees 6

United States v. Paradise, 480 U.S. 149 (1987).........cccccccceeeeeees 13

Univ. of Cal. Regents v. Bakke,

438 U.S. 265, 314 (1978) (Powell, J.)..........cccccscesceessseeeeeeeees 9

Wygant v. Jackson Board of Education,

Ga a Bets Pe Ce ttc 3,12

Rules and Statutes

LAE cn 10

I i aia ad ee ee Sa 10

Pub. L. No. 101-10162, 103 Stat. 1020-1021 (1990)......ccc00000000% 5

Pub. L. No. 100-459, 102 Stat. 2186, 2216-17 (1988)....ccc00000000 5

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

Congressional Materials

H. Rep. No. 363, 100th Cong. Ist Sess. 14 (1987) 0.00... 6

H.R. Conf. Rep. 765, 97th Cong. 2d Sess.

Ee Cee 49,14

S. Rep. 192, 100th Cong., Ist Sess. 76 (1989)

Minority Ownership of Broadcast Stations:

Hearing before the Subcomm. on Communications

of the Senate Committee on Commerce, Science,

and Transportation, 100th Cong. Ist Sess. 2............000+

Minority participation in the Media: Hearings

before the Subcomm. on Telecommunications,

Consumer Protection and Finance of the

House Comm. on Energy and Commerce,

QBth Cong. Ist Sess. (1983) ....ccccccccccsssssssssssseceseeseseeseee

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)

Ce DI, SE Pikcenctteetenctistieemticteeemmnsn

Parity for Minorities in the Media: Hearing before

the Subcomm. on Telecommunications, Consumer

Protection and Finance of the House Comm.

on Energy and Commerce, 98th Cong. 1st

I a le

eeeeeeeee

SERRE RRR RRR RR Tee ee eee eee ee

Administrative Materials

Alexander S. Klein, Jr., 86 F.C.C.2d 423,

4BB-GED (1B 1) .nccccccecsccccerccsccsiccscrccccveceeccsecscccsnsscsccessscoesseneess 15

Chain Broadcasting Rules, 3 Fed. Reg.

a Ga ceeeentrstinntintiniinammmmnsennememnmnemne 9

Formulation of Policies and Rules Relating to

Broadcast Renewal Applicants, Competing

Applicants and Other Participants to the

Comparative Renewal Process and to the

Prevention of Abuses of the Renewal Process,

De Be ennsttinentemaenemeeeemene 15

Hudson Valley Broadcasting, 13 Rad. Reg.

Re a Ba Go creertccecercscsarisscnsennemnenncscssssstccnesseneecsersessces 10

Policy Statement on Comparative Hearings,

Tow ee 9,17

Silver Star Communications-Albany Inc., 3 F.C.C. Red.

GE Gr, TE Fe cccrcecsestenesescemsnsesnnenesecssepmnssscrrsescnsstecseensenesceee 16

Statement of Policy on Minority Ownership of

Broadcast Facilities, 68 F.C.C.2d4 979,

TE ee Se 12,14

Suburbanaire, Inc., 104 F.C.C.2d 909

SII Tit: TUTTI. as ensersipanetinabinntbicsnunnaninunementenstacnmantents 17

vii

Waters Broadcasting Corp., 91 F.C.C.2d 1260,

1264-65 (1982), aff'd sub nom., West Michigan

Broadcasting Co. v. FCC, 735 F.2d 601 (D.C. Cir.

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

“Minority Participation in Broadcasting,”

Dollars & Sense, May/June 1979 at 18 .......cccccccccccsecceeeennes

Brief for Congressional Black Caucus et al. at 20-22

and nn. 27-32, Astroling Communications Co.,

LP. v. Shuberg Broadcasting of Hartford, No. 89-700

(filed Feb. 9, 1990)

Brief for NABOB at 17, Astroline Communications

Co., L.P. v. Shurberg Broadcasting of Hartford,

No. 89-700 (filed Feb. 9, 1990)

Brief for Petitioner, Metro Broadcasting, Inc. v. FCC,

No. 89-453 (filed Feb. 9, 1990)

Brief for United States, Metro Broadcasting, Inc. v. FCC,

No. 89-453 (filed Feb. 9, 1990)

Fife, The Impact of Minority Ownership on Broadcast

News Content: A Multi-Market Study, (1986)................

Honig, "Relationships among EEO, Program Service,

and Minority Ownership in Broadcast Regulation,”

printed in Proceedings of the Tenth Annual

Telecommunications Policy Research

Conference 85, 87-88 (1983)

FTE ETT ROO eR Ce Cee ee eee eee

FORE RRR RR REE CRO eH e eee eee

CREE EERO RRR RE REE EE ORR HR ERR ee eee

CORTE RRR ROR RR RTE EERE HR ee eee eee

eee PPP eee Pee eT ee eee eee eee eee eee eee eee ee

viii

Jeter, "A Comparative Analysis of the Programming

Practices of Black-Owned, Black-Oriented Radio

Stations and White-Owned, Black-Oriented Radio

Stations,” Ph.D. Dissertation, University of

Wissemsie, (1DB1) .nncccccccccccccecscrecccrsscecssencssscosassnssssssnssssecssoooess 11

Johnson, Media Images of Boston's Black Community,

Cat. BB, 1967) occcccccccosesecceecssecesecsececcssscsssncapuccovecsseneqsecesonssssenss 11

Owen, Beebe, and Manning, Television Economics

ae 14

Testimony of David Honig before the FCC en banc

AM Improvement Hearing 15 (Nov. 16, 1989).............0.0000+- 13

Testimony of John Payton before the U.S. Senate

Committee on Commerce, Science, and

Transportation, Communications Subcommitice

21 m2. 36 Begt. 15, 19OD)........22.0.-.cececececevereersecereserersesesesersoese 13

The Congressional Research Service, Minority

Broadcast Station Ownership and Broadcast

Programming: Is There a Nexus? (1988) ............cceeeeeeee 11

No. 89-453

IN THE

Supreme Court of the United States

OCTOBER TERM, 1989

METRO BROADCASTING, INC.,

Petitioner,

v.

FEDERAL COMMUNICATIONS COMMISSION, et al.,

Respondents.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE DISTRICT OF

COLUMBIA CIRCUIT

QUESTIONS PRESENTED

Whether Congress may require the Federal Communications

Commission to consider the race of an applicant for a radio or

television license to foster diversity among broadcast licensces

and to avoid perpetuating the effects of prior state-sanctioned

discrimination.

INTEREST OF AMICI CURIAE

The Congressional Black Caucus (“CBC”) was formed in

1970 when thirteen Black members of the U.S. House of

Representatives joined together to strengthen their efforts to

address the legislative concems of Black and minority citizens.

The vision and goals of the original thineen members, “to

promote the public welfare through legislation designed to meet

the needs of millions of neglected citizens,” has been reaffirmed

through the legislative and political successes of the Caucus.

The CBC is involved in legislative initiatives ranging from full

employment, welfare reform, South African apartheid and

international human nights, to minority business development and

expanded educational opportunity.

The National Association for the Advancement of Colored

People (“NAACP”) is the oldest and largest civil rights

organization in the United States. It is a non-profit corporation

with over 500,000 members and 2,300 branches and youth units

throughout the country. The basic aims of the organization are to

advance minority participation in all aspects of society and to

destroy all limitations or barriers based upon race or color. The

NAACP has long been involved in strengthening the machinery

promoting diversity of broadcast programming.

The National Black Media Coalition (“NBMC”™) is the

principal civil rights organization focusing on minority

employment and ownership in the broadcast media. Since its

founding in 1973, NBMC has participated in dozens of

adjudicatory and rulemaking proceedings to vindicate and expand

the FCC's minority ownership policies.

The League of United Latin American Citizens (LULAC”)

iS a Sixty-year old national membership organization concerned

with advancing the civil mghts and promoting the educational.

economic and social well being of Hispanic Americans in the

United States. LULAC has actively promoted minority

employment and minonty ownership policies in the broadcast

media before the FCC and the courts.

The District of Columbia Circuit affirmed the comparative

hearing policy prescribed by Congress and impiemenied by the

Federal Communications Commission (“FCC”). The policy in

question is designed not only to remedy minority

underrepresentation in broadcasting, stemming from past

discrimination, but also to promote diversity of broadcast

programming. Each of the amici is vitally interested in the

policies implicated by the D.C. Circuit's decision in this case.

SUMMARY OF ARGUMENT

Congress has prescribed the continuation of the comparative

hearing policy in order to promote diversity of programming, an

interest rooted in the First Amendment, and to avoid the

perpetuation of the effects of prior state-sanctioned

discrimination, in accordance with its broad powers to enforce the

Fourteenth Amendment. Unlike any other legislative body,

Congress has the authority to act on the basis of findings to

remedy past societal discrimination. Fullilove v. Klutznick, 448

U.S. 448 (1980). Accordingly, in determining the constitutionality

of the di.tress sale, Congress's choices as to both means and

ends are entitled to deference.

This Court has determined that race-based policies must

survive strict scrutiny in order io be constitutional. City of

Richmond v. J A. Croson Co . 108 S. Ct. 706, 720- In

particular, the policy must further a compelling governmenial

interest and must be narrowly tailored to achieve that goal.

Wygant v. Jackson Board of Education, 476 U.S. 267, 274 (1986).

Because the comparative hearing policy fulfills those

requirements, it is constitutional.

The comparative hearing policy serves the compelling

governmental interest in promoung diversity among broadcast

licensees, which is derived from First Amendment valucs.

Congress and the Federal Communications Commission

(“FCC”) have determined that the public is best served by the

“widest possible dissemination of information from diverse and

amtagonistic sources.” Associated Press v. United States, 326

U.S. 1, 20 (1945). The FCC, empowered by the Communications

Act of 1934 to promote the public interest, has decided that

diversity of ownership is one means by which the listening and

viewing public will be assured of receiving a broad spectrum of

ideas. As a result, the FCC's policy to encourage diversity is an

integral part of the agency's regulatory framework. The

comparative hearing policy is just one component of the FCC's

overall objective to diversify broadcast licensees.

The comparative hearing policy also serves the compelling

State interest of remedying the effects of prior state-sanctioned

discrimination. Congress and the FCC have found that the

paucity of minority broadcast licensees today is attributable, at

least in part, to past discrimination. H.R. Conf. Rep. 765, 97th

Cong. 2d Sess. 43 (1982). Without affirmative action specifically

directed toward increasing the number of minority licensees, the

effects of their exclusion will continue indefinitely, since most

licenses are renewed. The comparative hearing policy recognizes

these facts and serves to hasten the dismantling of the virtual

monopoly of radio and television licenses enjoyed today by

nonminoritics — a monopoly attributable in significant par to

State-sanctioned discrimination.

The comparative hearing policy is narrowly tailored to achieve

its objectives. The burden on nonminority broadcasters is

minimal. Even after seventeen years of operation of this policy,

approximately ninety-eight percent of all radio and television

licenses are stil) held by nonminorities. Morcover, the policy is

invoked only if no applicant has a clear advantage on the basis of

race neutral criteria established by the FCC.

Because the policy is narrowly tailored to foster

diversification and to remedy the effects of past discrimination,

the use of the minority enhancement credits does not stigmatize

minority broadcast licensees. The policy is based upon the

premise thal minority broadcasters can compete on equal footing

with their white counterparts. It does not constitute a rigid quota

that bears no relationship to its ends. Nor docs the policy brand

its beneficiaries as unqualified, for only qualified applicants are

entitled to be beneficiaries of the policy. Instead, the policy is

used to promote diversity and equal opportunity where there is

no quantifiable difference among all qualified broadcast

applicants.

ARGUMENT

I. CONGRESS MAY PRESCRIBE THE

CONSIDERATION OF RACE TO PROMOTE

DIVERSITY AMONG BROADCAST LICENSEES

AND TO AVOID THE PERPETUATION OF THE

EFFECTS OF PRIOR DISCRIMINATION.

A. Congress prescribed the contiauation of the

comparative hearing policy initiated by the FCC in

1978.

Since 1987, Congress has required the FCC to maintain a

race conscious comparative hearing policy.! This annual

directive, appearing in the form of appropriations legislation,

approved by the House and the Senate and signed by the

President, prohibited the use of any federal monies for the

purpose of repealing the policies to promote minority ownership

in broadcasting. Any suggestion by the Petitioner, the United

States, or other amici that such legislation is something less than

an Act of Congress is untenable. Moreover, Iegislative matcnals

preceding the 1987 appropriations bills indicate that Congress

imended to preclude any action by the FCC to dismantle the

! See Pub. L. No. 100-202, 101 Stat. 1329 (1987); Pub. L. No. 100.459, 102

Stat. 2186, 2216-17 (1988); Pub. L. No. 101-10162, 103 Stat. 1020-1021 (1990).

race-conscious comparative hearing policy. See e.g. 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., 13, 19, 21 (1986) (“Hearings on H.R. 5373")

(Congressman Leland promised to introduce legislation

“codifying existing PCC [diversity policies) . . . because of my

fear of an FCC preemptive strike .. . during the Congressional

recess.”), see also Minority Ownership of Broadcast Stations:

Hearing before the Subcomm. on Communications of the Senate

Committee on Commerce, Science, and Transportation, 100th

Cong. Ist Sess. 2 (“Congressional response [to the FCC's

threatened dismantling of the diversity policies] was immediate.

clear and virtually unanimous. Legislation was cnacted

instructing the FCC not to take any action to climinate or

undermine the minority ownership policies.”)? The minority

enhancement credit policy is thus “a deliberaicly chosen

congressional policy.” Cf. Shurberg Broadcasting of Hartford, Inc.

v. FCC, 876 F.2d 902, 910 (D.C. Cir. 1989). Accordingly, the

judgment of the court of appeals may be reversed only if Congress

lacks power to prescribe the consideration of race} in comparative

hearings to promote diversity among broadcast licensees and to

2 Furthermore, it is axiomatic that the PCC, as a creation of Congress is

bound to umplement the legislative policies of that body. See e.g. Humphrey's

Executor v United States, 295 U.S. 605, 628 (1935) (Administrative agency, as

creauion of Congress. acts as “legislative ad”, performing duues specified by the

Congress), H. Rep. No. 363, 100th Cong. Ist Sess. 14 (1987) (“Congress created

the PCC, the FCC carries out Congress’ policies under Congress’ standards;

Congress oversees the FCC and agencies like the FCC serve .. . as a ‘legislative

aid” .™).

Finally, the court of appeals decisions that may have served to focus the

attention of the FCC on the need for action are immaterial to the

constitutional validity of the Congressionally prescribed race conscious

comparative hearing process. See eg TV-9, Inc v. FCC, 495 F.2d 929 (DC. Cir.

1973), cert. denied, 419 US. 986 (1974) and Garret v. FCC, 513 F.2d 1056

(D.C. Cir. 1975).

3 As the United States has noted. the policy granting e:.hancement credit:

on the basis of gender is not before this Court. Brief for United States at Sn. S,

Metro Broadcasting, Inc v FCC, No. 89-453 (filed Feb. 9, 1990) (°U.S. Br.”)

avoid perpetuating the effects of prior state sanctioned

discrimination.

B. Congress is empowered by the Constitution to take

actions to encourage full minority participation in the

mainstream of American economic and political life is

a reality, as long as those actions are clearly related

to the stated ends.

Given the history of state-sanctioned racial discrimination in

this country, strict scrutiny is the appropriate standard of review

for race conscious governmental action. E.g., City of Richmond v.

Croson, 109 S. Ct. 706 (1989). That same history, however,

demands that this Court leave sufficient room for legislative

action to eliminate the consequences of the nation’s long failure

to recognize that discrimination on the basis of race is immoral,

illegal, and unconstitutional.

Congress, unlike any other legislative body, has the authority

and the Constitutional mandate to enforce the promise of racial

equality embodicd in the Fourteenth Amendment in order to

eradicate the effects of socictal discrimination. Fullilove v.

Klutznick, 448 U.S. 448 (1980) (Burger, C.J.) Section Five of the

Fourteenth Amendment specifically authorizes the political

branches of the Federal Government to act to assure that all

members of our society participate fully in the political and

economic institutions of our nation. See /d. Because Congress

has broad authority to determine whether and what legislation 1s

needed to secure the guaraniccs of the Fourteenth Amendment,

it is thus entitled to deference with respect to both means and

ends 4

4 The United States concedes that Congress’ wdgment “that there is a

need for remedial race-conscious acuen ts entitied to sagmficant deference ~

U.S. Br. a1?

In addition, strict scrutiny does not authorize this Court to

substitute its judgment for that of Congress as to cither ends or

means. See Rostker v. Goldberg, 453 U.S. 57, 68 (1981);

Fullilove, 448 U.S. at 472. Congress, and not this Court, is

charged with the responsibility of assuring that the guarantee of

the Fourteenth Amendment becomes a reality for those who

have been excluded from its protection for most of our history.

See Fullilove, 448 U.S. at 472, 483-4 (Powell, J.). Accordingly, so

long as the basis for Congressional action is discernible,

Congress need not compile a record appropriate for judicial or

administrative proceedings. /d. at 463-7 (Burger, C_J.). 1d. 448

U.S. at 503 (Powell, J.). Congress's judgment as to the need to

take action to encourage full minority participation should

therefore be sustained unless it is pretextual.

This Court has recognized the First Amendment valucs

served by the FCC's general policies to encourage diversity

among broadcast licensees. E.g.,FCC v. National Citizens

Committee, 436 U.S. 775, 795 (1978). Throughout the history of

broadcast regulation, the scarcity of frequencies for which

applicants compete has compelled the FCC to make certain that

licenses are distnbuted in a manner which, inter alia, ensures

that the public has access to a varicty of programming, and in so

doing, fulfills the mandate set forth in the Communications Act of

1934. As the Commission noted upon enacting the comparative

hearing policy: “Diversification of control is a public good in a

free society and is additionally desirable where a government

licensing system limits access by the public to the use of radio

and television facilities.” Policy Statement on Comparative

Hearings, 1 F.C.C.2d 393, 394 (1965).

Thus, in the context of regulation of the broadcast industry,

diversity itself is the good. Cf. Univ. of Cal. Regents v. Bakke,

438 U.S. 265, 314 (1978) (Powell, J.). Where the Federal

Government maintains strict control over access to a scarce

resource such as the broadcast spectrum, it may conclude that

the public interest requires that no single person, entity, or group

should be granted a monopoly of that resour~: — intentionally,

inadvertently, or due to factors beyond its control. In particular, if

its Own actions or failure to act may have resulted in excluding

identifiable groups, the Fedcral Government may conclude that

_the public interest requires affirmative efforts to increase the

presence of those previously excluded.

The comparative hearing policy thus rests firmly on the

presumption that the public interest is best served by the widest

possible diversity among decision-makers. S. Rep. 192, 100th

Cong., Ist Sess. 76 (1989); H.R. Conf. Rep. 765, 97th Cong., 2d

Sess. 40 (1982); Shurberg, 876 F.2d at 942 (Wald, C.J.,

dissenting). The comparative hearing policy is just one aspect of

the FCC's general diversity policies, and is integrally related to

the FCC's broader regulatory policics, including, for example,

deregulation.© Contrary to the arguments of Metro Broadcasting

® Several FCC rules regarding ownership of stations were enacted for

purposes of providing the public with diverse programming. See e.g., Chain

Broadcasting Rules, 3 Fed. Reg. 747 (1938), in which the Commission set forth

the areas of concern regarding network ownership of radio stations. Even at

that time, the FCC had concluded that ownership had an effect upon the

programming received by viewers. The result of that assumption was a rule

continued

and the United States, the validity of the FCC program does not

depend at all on statistical proof that the programming decisions

ip of radio stations. See also 47 C.F.R. § 73.3555, the

or television stauons whose service areas overlap, and 47 C.F.R. § 73.65 (f),

prohibiting network ownership of television stations in areas where the

existing television broadcast stations are so few or of such unequal desirability

- “thal competition would be substanually restramed by such licensing.

These rules were enacted to increase competition among licensees by

prohibiting « monopoly of ownership by any one group, and to thereby increwse

the variety of programs available to the public. See Hudson - ey

Broadcasting, 13 Rad. Reg. (P&F) 49, 58-59 (1956) (“The plain intent of ...

Rule [73.658 (f)) is lo prevent ownership or substantial measure of control =

to restrain, through limitation of competition, the receipt by the public of 8

variety of ... programs.) The nexus between diversity of ae

diversity of programmung has thus been an underlying assumption of

diversity policy since ils incepuon

of black or other minority licensees will be affected by their

personal tastes, rather than the market.”

Nonetheless, by definition, diversity assures that

programming decisions will not be made by a single person,

entity, or group. Similarly, of course, the views of blacks and

other minorities in America may be identical to those of white

males on many issues of public policy. Diversity assures,

7 Several studies do suggest, however, that the race of a broadcast licensee

does have an effect upon ing. See, e.g., The Congressional Research

Service, Minority Broadcast Station and Broadcast °

Is There a Nexus? (1988). Data collected by the PCC from nearly 9,000 of its

12,101 television and radio stations, indicated that there is a strong correlation

This study was consistent with the results of four other studies addressing

the same question. Johnson, Media Images of Boston's Black Community, (Jan.

28, 1987) (available at the William Monroe Trotter Institute, University of

Massachusetts at Boston) (unpublished manuscript), (examining treatment of

over 3000 local news stories by white and Black-owned media

statistically significant differences in racial ji : and

negative treatment of certain types of stories); Fife, The Impact of Minority

Ownership on Broadcast News Content: A Multi-Market Study, (1986)

(available at the Department of Telecommunication, Michigan State

University) (unpublished study) (concluding that minority owned television

stations had statistically significantly higher representation of Blacks on

newscasts than did comparable nonminority owned stations); Jeter

:

i

Homg, “Relationships among EEO. Program Service, and Minority Ownership

in Broadcast Regulation,” printed in Proceedings of the Tenth Annual

Telecommunications Policy Research Conference 85, 87-88 (1983) (finding, for

example, that in Black oriented stations, 72% of management employees ai

Black owned stations were Black but 38% of management employees at White

owned stations were Black).

Of course, it would be stereotyping to suggest that all minorities should

only target their programming towards their respective groups, or that all

minonues would even desire to do so. However, the evidence clearly shows that

munority broadcasters do make special efforts to serve those members of their

own racial group.

12

however, that on those occasions when race does make a

difference, the voices of minority Americans will be heard

distinctly and not as edited or screened by white males, to the

benefit of the entire nation. Statement of Policy on Minority

Ownership of Broadcast Facilities, 68 F.C.C.2d 979, 982 (1978).

D. The comparative hearing policy also furthers the

compelling government objective of avoiding ihe

perpetuation of the effects of prior discrimination.

As the Petitioner concedes, “the Federal Government has a

compelling interest in remedying past discrimination and its

lingering effects.” Brief for Petitioner at 36,8 Metro Broadcasting,

Inc. v. FCC, No. 89-453 (filed Feb. 9, 1990) (“Pet. Br.”). The

distribution of radio and television licenses today is the product of

a system of state-sanctioned preferences favoring white males

that has existed since the founding of this nation. Accordingly,

Congress's actions to redress the effects of the long history of

legalized discrimination and to avoid the perpetuation of the

legacy of discritaination are completely justified.

“No one doubts that there has been serious racial

discrimination in this country.” Wygani v. Jackson Board of

Education, 476 U.S. 267, 276 (1986). For the first 150 years of

the nation’s history, this Coun explicitly condoned discrimination

against black Americans. Scort v. Sandford, 60 U.S. (19 How.) 39

(1857); Plessy v. Ferguson, 163 U.S. 537 (1896). As a result, for

the first 27 years of federal broadcast licensing, which includes

the first 20 years of the FCC's existence, the licensing process

occurred within this context of state-sanctioned discrimination

against black Americans. This Court's recognition in 1954 that

® Metro Broadcasting's reliance on the FCC's statements in the court of

appeals that the comparative hearing policy was not intended to remedy pnor

discrimination by the FCC or others is misplaced. Today, the comparative

hearing policies are specifically prescribed by federal legislation. It is the

consutuuionality of Congress, action that 1s at issue in this case.

13

discrimination against black Americans in public education was

inconsistent with the promise of equal protection did not

climinate racial discrimination or racism, as the Court's

subsequent decisions eloquently attest. United States v.

Paradise, 480 U.S. 149 (1987), Cooper v. Aaron, 358 U.S. 1

(1958). This Court has further acknowledged that neither the

Civil Rights Act of 1964 nor subsequent legislation has

eliminated discrimination on the basis of race or racism. See e.g.

Fullilove, 448 U.S. at 477.

Until 1978 the FCC procedures for awarding radio and

television licenses ignored the “lingering effects” of state-

sanctioned racial discrimination on the ability of black Americans

to compete for radio and television station licenses. As a

consequence, virtually all broadcast licenses were awarded to

white males.? In fact, not a single radio or television broadcast

license was awarded to any black American after a comparative

hearing until 1975.10 By 1978, when the FCC adopted the

comparative hearing policy, most radio and tclevision licenses

had been awarded.!! FCC inaction during much of its history

makes it at least a “passive participant” in the virtual exclusion

of minority broadcast licensees. !2

9 Testimony of John Payton before the U.S. Senate Commitice on

Commerce, Science, and Transportanon, Communications Subcommittee 2! 1.

36 ( 15, 1989).

10 Testimony of David Honig before the FCC en banc AM Improvement

Hearing 15 (Nov. 16, 1989). In 1949, however, Jesse Blayton purchased an

existing station. Brief for NABOB at 17, Astroline Communications Co. LP. v

Shurberg Broadcasting of Hartford, No. 89-700 (filed Feb. 9, 1990), citing

M. Muhammed, “Minority Participation in Broadcasting,” Dollars & Sense.

May/June 1979 at 18. The first permit to construct a new broadcast station was

awarded in 1956. Homg Tesumony, M. Muhammed, supra.

1] Payton Senate Testimony at 21.

12 In addition, the FCC's actions which gave a head start in spectrum

to the present day underrepresentation of minorities in broadcast station

89-700 (filed Feb. 9, 1990).

14

Congress and the Commission have found that the paucity of

minority broadcast licensees today is attributable at least in part

to past racial discrimination. E.g., H.R. Conf. Rep. No. 765 at 43;

Statement of Policy on Minority Ownership, 68 F.C.C.2d at 981.

Without affirmative action specifically directed toward increasing

the number of minority licensees, white males will continue to

control virtually all radio and television stations in this country.

Race neutral polices seeking diversification of the ownership of

radio and television stations failed to increase the number of

minority licensees. Furthermore, because most licenses are

renewed, the initial awards affect the distribution of licenses long

into the future. See generally Central Fla. Enterprises v. FCC, 683

F.2d 503, 506-10 (D.C. Cir. 1982).13

The comparative hearing policy recognizes these facts, and

serves to hasten the dismantling of the virtual monopoly of radio

and television licenses enjoyed today by white males — a

monopoly that is attributable in significant part to state

sanctioned discrimination. The comparative hearing policy also

attempts to correct the FCC's failure to acknowledge the

consequences of state sanctioned racial discrimination before

1978. The equal protection component of the Fifth Amendment

does not require Congress to ignore this nation’s long, sordid

history of racial discrimination. To hold that Congress must

disregard that history and, more important, its present

consequences would pervert the concept of equal protection and

serve only to perpetuate the preferred place of white males

throughout this nation’s economic and political institutions.

|

7

‘

|

:

see Owen, Beebe, and Manning, / elevision Economics 114 (1974); there are

very few blacks, Hispanics, or women in that group.

E.The comparative hearing policy is narrowly tailored to

achieve its objectives.

The burden of the comparative hearing policy on nonminority

broadcasters is minimal. No nonminority applicant is excluded

from competition for any license. The policy is invoked only if no

applicant has a clear advantage on the basis of the race neutral

criteria established by the FCC.!4 In effect, the policy functions

as follows: wher there is no significant quantitative difference

among the applicants in their media holdings and in the extent to

which their owners will be integrated into station management,

the FCC advances the public interest in diversity by awarding the

license to those who are least represented among current

licensees.'5 Accordingly, any of several factors considered by

the FCC can be dispositive.!®

14 See Alexander S. Klein, Jr, 86 F.C.C.24 423, 428-429 (1981) (qualitative

enhancements are important, but cannot overcome clear quantitative

differences in integrauon proposals )

15 Metro Broadcasting emphasizes the potential importance of the

applicant's race in modern comparative hearings, but omits any mention of the

critical fact: seventeen years after this policy was adopted, approx:mately 98%

of all radio and television hcenses stl! are held by non-minorntes.

16 The fact that, as Metro contends, the policies have been effective in

encouraging applicants who own no other hcenses (and discouraging applicants

who own other licenses) is not a criucism, but confirmation of the effecuveness

of the policies.

Metro also complains that the comparative hearing policies may be

circumvented by careful structuring of the application. If the FCC concludes

that the ownership structure of any applicant is an attempt to circumvent the

spirit of the comparative hearing policy, it may reject such applications.

. the credit that Metro Broadcasting received as a consequence of its

“19.8% principal who was black” was not the result of circumvention.

In any case, the FCC has not hesitated to exercise its broad powers to

discourage sham applications. See Formulation of Policies and Rules Relating

to Broadcast Renewal Applicants, Competing Applicants and Other

Participants to the Comparative Renewal Process and to the Prevention of

Abuses of the Renewal Process, 3 F.C.C Red 5179 (1988).

Moreover, a broadcast applicant who obtains a license through the

minority ownership policies is not imsulated from FCC sancuons for violating

continued

The goal of diversity of broadcast licensees cannot be

achieved with race-neutral policies. The FCC adopted the

comparative hearing policy only after race neutral policies had

proven ineffectual.!? The need for race conscious programs aris -s

in large part from the history of racial discrimination that produced

a virtual white male monopoly of mass media licenses.

Il. THE COMPARATIVE HEARING POLICY DOES

NOT STIGMATIZE MINORITY BROADCAST

LICENSEES.

Because the comparative hearing policy is narrowly tailored

to advance diversification and to remedy the effects of past statc-

sanctioned discrimination, it does not stigmatize minority

broadcast licensees. See Fullilove, 448 U.S. 521 (Marshall, J.).

As set forth more fully above, the policy does not consist of a

rigid quota or set-aside which is not rationally related to the

goals of Congress or the FCC. The policy is grounded instead in

the notion that some race-based measures are necessary to

exclusion of minorities.

The awarding of minority enhancement credit docs not

assume any inability to compete in the future on the part of

minority broadcasters. On the contrary, the policy is activated

only if a minority applicant's qualifications are quantitatively

similar to competing applicants. Thus, an applicant may be

awarded a broadcasi license on the basis of the comparative

hearing policy only if it is “qualified to do the work” in the first

the terms of the license. See Silver Star Communications-Albany Inc. 3 FCC.

Red. 6342 (Rev. Bd. 1988) (licenses revoked where minority distress sale

purchaser failed w operate stations personally as requwed by the terms of his

hoense

Fens decteeten Gs Cinid Gees ds teen des © eee

diversity of programming and efforts to increase diversity of ownership 1s a

disunction without a difference, for the FCC has atiempted ‘o achieve diversity

of programming principally through diversity of ownership

17

mstance. /d. Because all applicants must meet the same basic

qualifications in order to be considered for licensing, Policy

Statement on Comparative Hearings, | F.C.C.2d at 394, the

consideration of race in this context functions only as a “plus-

factor,” which is necessary to address the history of state

sanctioned discrimination which has resulted in the virtual

absence of minorities from the broadcast industry. Thus, the

policy does not brand its beneficiaries as unqualified, since all

broadcasters are held to the same stringent qualifying standard

from the beginning. '8

The comparative hearing policy is thus carefully designed to

avoid stigmatizing minority licensees. In particular, the policy

has a remedial purpose: to provide minority broadcasters with

the access to the licensing process which was denicd them

through state-sanctioned discrimination. Cf. Croson, 109 S. Ct. at

2767. (“Unless [classifications based oi: race] are strictly

reserved for remedial settings, they may in fact promote notions

of racial inferiority and lead to a politics of racial hostility.”)

Moreover, it has affected only a small number of nonminority

broadcasters, such that only two percent of all broadcast licenses

are held by minorities. See Fullilove, 448 U.S. at 521. The

awarding of minority enhancement credits is thus a legitimate

race-based policy confined to the specific purposes of remedying

18 Indeed, the FCC Review Board has refused to award a special credit to

@ minority applicant for proposing to broadcast minority-oriented

programming, holding that this would be premised on an invidious racial

img of the very character derived by the majority panel in Steele v.

FCC, 770 F.2d 1192 (DC. Cir. 1985). Suburbanaire, Inc. 104 F.C.C.2d 909

(Rev. Bd. 1986).

The Commission 1s sensitive to questions of stereotyping and stigma. It

awards credit for minority ownership without regard to the market

demographics to be served, correctly recognizing that minorities can succeed in

diversifying information provided to nonminorities just as well as they can

succeed in diversifying information provided to nonminorities. See Waiers

Broadcasting Corp. 91 F.C.C.2d 1260, 1264-65 (1982), aff'd sub nom., West

Michigan Broadcasting Co. v. FC€, 735 F.2d 601 (D.C. Cir. 1984), cert. denied.

470 U.S. 1027 (1985).

past societal discrimination and furthering the First Amendment Of Counsel:

imerest in promoting diversity in broadcasting.

Squire Padgett

1628 11th Street, NW.

CONCLUSION Washington, D.C. 20001

For the foregoing reasons, the judgment of the court of George W. Jones, Jr.

appeals should rmed Verna L. Williams

. ae Sidley & Austin

1722 Bye Sweet, NW.

Washington, D.C 20006

Respectfully submitted,

Professor Robert Sedler

Herbert Henderson Wayne State University

a ine G ic , School of Law

—, 468 W. Perry

Brian J. Carter Detroit, MI 48202

Assistant General Counse! Dow, Lohnes & Albertson

Baltimore, MD 21215 Suite 300

(301) 358-8900 Washington, D.C. 20037

Counsel for National Association for the (202) 857-2937

Advancement of Colored People

David E. Honig )

(Counsel of Record)

1800 N.W. 187th Sweet

Miami, FL 33056 .

(305) 628-3600 \

Counse! for Congressional Bleck Caucus and

Eduardo Pefia

1101 Fourteenth Sweet, N.W.

Sune 610

Washington, D.C. 20005

(202) 371-1555

Counsel for League of United Latin

American Ciuzens