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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0682%3A20

## Record

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

## Text

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0682%3A20. Public record. Not legal advice.