Amicus Curiae Brief — Astroline Communications Co. v. Shurberg Broadcasting of Hartford, Inc.

[Supreme Court, US.

\ rye

| | vaR § 1990

No. 89-700 —

JOSEPH F. SPANTOL, JR.

RK

In the Supreme Court of the United States

OCTOBER TERM, 1989

ASTROLINE COMMUNICATIONS COMPANY

LIMITED PARTNERSHIP, PETITIONER

Vv.

SHURBERG BROADCASTING OF HARTFORD, INC., 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 RESPONDENT SHURBERG BROADCASTING

OF HARTFORD, INC.

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

Department of Justice

Washington, D.C. 20530

(202) 633-2217

BEST AVAILABLE COPY [na

—_ ee

QUESTION PRESENTED

Whether the Federal Communications Commission’s minori-

ty distress sale policy, which permits certain licenses to be

transferred only to minority-controlled firms, violates the equal

protection component of the Fifth Amendment.

(1)

ete ere ee

TABLE OF CONTENTS

Page

interest of the United States .............. cece eeees l

csc cessectecensscues 2

sas 6 os 5s oo 600.0 60) 00 80 ow 8

icc n cach ease bebeees coeeecess 11

The Federal Communications Commission’s

minority distress sale policy, which permits certain

licenses to be transferred only to minority-

controlled firms, violates the equal protection com-

ponent of the Fifth Amendment ................ 11

1. Classifications by the federal government on

the basis of race may be sustained only if

“narrowly tailored” to achieve a “compell-

RE Fe od ben ecaenecncsesee 11

Il. The Federal Communication Commission's

minority distress sale policy is not “narrowly

tailored” to achieve a “compelling” interest . 13

ne ccceee 29

TABLE OF AUTHORITIES

Cases:

Arnold L. Chase, 4 F.C.C. Red 5085 (1989) ...... 6

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

Ne rk i weedaeces 21

Astroline Communications Co., In re, No. 2-88-

01125 (Bankr. D. Conn. Dec. 1, 1988) ..... eras 6

Bolling v. Sharpe, 347 U.S. 497 (1954)... 2.0... .. 11

Brown v. Board of Educ., 347 U.S. 483 (1954) .... 11

Carpenter v. Thornburg, No. 88-3578 (4th Cir.

NT kee eeeebees 15

Cathryn Murphy, 42 F.C.C.2d 346 (1973)... 2... 2

City of Richmond vy. JA. Croson Co., 109 8. Ct.

TE a a wees 8, 11, 12, 16, 17,

19, 20, 27, 28

(itl)

IV

Cases — Continued: Page

Dellmuth v. Muth, 109 S. Ct. 2397 (1989) .. 2.2... 23

Faith Center, Inc.:

EN nc coe cee cunssbess 4

99 F.C.C.2d 1164 (1984) ................... 4

BF i es IE occ ccccecncccceces 5

54 Rad. Reg. 2d (P & F) 1286 (1983) ......... 4

FCC v. National Citizens Comm. for Broadcasting,

Sa, PO nck nkeetckcecssuvesasas 21-22

Fullilove v. Klutzmek, 448 U.S. 448 (1980) ....12, 13, 15,

16, 19, 20, 28

Garrett v. FCC, 513 F.2d 1056(D.C. Cir. 1975)... 2, 26

Grayson Enterprises, Inc., 47 Rad. Reg. 2d (P & F)

SE 6 c's can oxo osunduer see e caer eens 3

Hampton vy. Mow Sun Wong, 426 U.S. 88 (1976) .. 23

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

EE is dc wae da t OME Sh e-cc.k Gace ce cas 15

La Rose v. FCC, 494 F.2d 1145 (D.C. Cir. 1974)... 2

Miami Herald Publishing Co. v. Tornillo, 418

8 eR er ee ae 22

Northland Television, Inc., 42 R4d. Reg. 2d

en sk, W's oc ace cee Baas s ee 2

Red Lion Broadcasting Co. v. FCC, 395 U.S. 367

SE: SEE ooo cass « + oo xen salle wel 22

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

ah: SE. «ys ccd + Wate hececerows «eka li, 12,

17, 19

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

PPR eh pe SS SE i 12

Steele v. FCC, 770 F.2d 1192 (D.C. Cir. 1985) .... 26, 27

Strauder v. West Virginia, 100 U.S. 303 (1880) .... 11

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

(D.C. Cir. 1989), cert. denied, 110 S. Ct. 717

EE AGe ens c CEC aia tA aRs 0a eka ae oO abe 25

V

Cases — Continued: Page

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

cert. denied, 419 U.S. 986 (1974) .............. 2, 26

United States v. Paradise, 480 U.S. 149 (1987) .... 12-13,

United States v. Storer Broadcasting Co., 351 U.S.

PE ied Wied ds Wg cine a eal amis hate idles na 22

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

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

Pee ee ere eee ee. pees aan 5

Winter Park Communications, Inc. v. FCC, 873

F.2d 347 (D.C. Cir. 1989), cert. granted, 110

RC Rr er 23, 24, 26

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

SE oad Een cess cusa tine vena 12, 13, 16,

17, 18, 27

Constitution, statutes, and regulations:

U.S. Const.:

TE as 5 0G chic dn chur vss veweeks 15

s,s oad ined oe bb ss cukeeeeess l

§ 1 (Equal Protection Clause) .......... 15

Be Oe se ee a ee 15

Departments of Commerce, Justice, and State, the

Judiciary, and Related Agencies Appropriations

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

tS f 5 | Sy epee s aetna 5, 15

Departments of Commerce, Justice, and State, the

Justice, and Related Agencies Appropriations

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

2216-2217 ......: at so dw eeu ae eee e sks 03 5, 15

Departments of Commerce, Justice, and State, the

Judiciary, and Related Agencies Appropriations

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

EE co Chace 5 use 0 Sue Oi e OED wie eek 64 5, 15

Vi Vil

Statutes and regulations — Continued: Page Miscellaneous — Continued: Page

Minority-Owned Broadcast Stations: Hearing on

EE Pn CON d ho4 ccd eece seue sun 2

sla fa) H.R. 5373 Before the Subcomm. on Telecom-

42 U.S.C. 2000e-S(II) 06. ever errr ener es munications, Consumer Protection, and Finance

42 U.S.C. 2000h-2 ete o's & 5 6b 6's 8.6 6 ee 8 0 ee OS | of the House Comm. on Energy and Commerce,

OP ci ces bocce eh eyeeee canes oo 6 SOee Ss Bee es ED ov vod be Sek G ee cies. 24

OP Ws MED ccc ccecceversctsceneceess 14 Minority Participation in the Media: Hearings

- Before the Subcomm. on Telecommunications

eR RNP ore ry? re ee 5, 14 °

wad — » SUSMA) > Consumer Protection, and Finance of the House

28 C.F.R. O.20(a) ©... eee ee eee eee Comm. on Energy and Commerce, 98th Cong.,

re Cy 66d eie esses tee enews on 5, 6 SP eclicvecevadeccestateten cies 24

Order (MM Docket No. 86-484), 3 F.C.C. Red 766

Miscellaneous: NE he rid A he nid OR ees sles 5

Broadcast /Mass Media Application Statistics, FCC Parity for Minorities in the Media: Hearing on

Ann. Rep. (Fiscal Years 1979-1988) ........... 18 H.R. 1155 Before the Subcomm. on Telecom-

munications, Consumer Protection, and Finance

of the House Comm. on Energy and Commerce,

Sener Ce... BOE SR. GD 6 oc o's eo kev cnebsce- 24

Commission Policy Regarding the Advancement

of Minority Ownership in Broadcasting, 92

pees * - Perrrrreere Tree 3 ‘ rie pyar | a

' examination O e Commission's Comparative

133 Cong. Rec. $14,395 (daily ed. Oct. 15, 1987)... 23 pyimeccrncmgg Shes wcnypeacrys te oes

134 Cong. Rec. $10,021 (daily ed. July 27, 1988)... 23, Policies Premised on Racial, Ethnic, or Gender

24-25 Classifications, 1 F.C.C. Red 1315 (1986),

Congressional Research Service, Minority Broad- modified, 2 F.C.C. Red 2377 (1987) .......... |

cast Station Ownership and Broadcast Program- Report Concerning General Fairness Doctrine

ming: Is There A Nexus? (June 29, 1988) ....... 24 Obligations of Broadcast Licensees, \02 F.C.C.2d

H.R. Cont. Rep. No. 208, 97th Cong., Ist Sess. PPG cule ecusek Ciwis se eeers oe 25

0) 17 Report of the National Advisory Commission on

H.R. Cont. Rep. No. 765, 97th Cong., 2d Sess. Civil Disorders (1968)... .. Pe ge AE 25

lets iho kd aes Sua es ere ald rah Show 16 S. Rep. No. 182, 100th Cong., Ist Sess. (1987) 23

Minoruy Ownership of Broadcast Stations: Hear- Statement of Policy on Minority Qwnership of

ing Before the Subcomm. on Communications of Broadcasting Facilities, 68 F-C.C.2d 979

the Senate Comm. on Commerce, Science, and DCas s ceaee neat es 2, 3, 4-5, 26

Transportation, VO\st Cong., Ist Sess. (1989) ... 24 United States Commission on Civil Rights, Wendow

Minority Ownership Tasktorce, FCC, Minority Dressing on the Set: An Update (Jan. 1979) 25

Ownership in Broadcasting (1978) 0... 2... . 2-3, 26

Vill

Miscellaneous — Continued: Page

United States Commission on Civil Rights, Window

Dressing on the Set: Women and Minorities in

Television (Aug. 1977) ... 0.6. ccc ccccccececes 25

Jn the Supreme Court of the United States

OCTOBER TERM, 1989 °

No. 89-700

ASTROLINE COMMUNICATIONS COMPANY

LIMITED PARTNERSHIP, PETITIONER

SHURBERG BROADCASTING OF HARTFORD, INC., 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 RESPONDENT SHURBERG BROADCASTING

OF HARTFORD, INC.

INTEREST OF THE UNITED STATES

The United States is responsible tor enforcing many statutes

prohibiting discrimination on the basis of race or national origin

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

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

2000h-2). The United States filed extensive comments with the

Federal Communications Commission as part of the inquiry

proceeding to consider the validity of its minority preference

policies,' and has recently tiled a briet as amicus curiae in Merro

See Reenamination of the Commission's Comperative Licensing, Destress

Sales and Tan Certificate Policies Premised on Racial, Ethnw, or Gender

Classifications, 1 ECC) Red 1318 (1986), moditied, 2 FCC) Red 2377

(1987): JA 48-66

(1)

2

Broadcasting, Inc. v. FCC, No. 89-453, a case that involves the

validity of one of those policies.? In each of these submissions,

the United States has maintained that the Commission’s policies

could not withstand the exacting scrutiny required by the Con-

stitution and this Court’s decisions, and were thus invalid. The

United States adheres to that position.’

STATEMENT

1. When a television or radio broadcast license has been

designated for a revocation hearing, or when a license renewal

application has been scheduled for a qualification hearing, the

Federal Communications Commission (FCC) generally pro-

hibits the licensee from assigning or transferring the license until

the Commission determines whether the licensee remains

qualified to hold it. See, e.g., Northland Television, Inc., 42

Rad. Reg. 2d (P & F) 1107, 1110 (1978). The Commission’s

“distress sale” policy represents an exception to that general

rule, “developed initially as a way of avoiding time consuming

hearings when expeditious action to oust the licensee was de-

sirable —for example, when the licensee was bankrupt or dis-

abled.” Pet. App. 4a-5a; see Cathryn Murphy, 42 F.C.C.2d 346

(1973); La Rose v. FCC, 494 F.2d 1145 (D.C. Cir. 1974).

As originally conceived and implemented, the FCC’s distress

sale policy was race-neutral. However, as a result of 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); Garreti

v. FCC, 513 F.2d 1056 (1975), the FCC supplemented the

original policy by adopting a minority distress sale policy. See

Statement of Policy on Minority Ownership of Broadcasting

Facilities, 68 F.C.C.2d 979, 983 (1978) [1978 Policy Statement);

> We have provided copies of our brief in Metro Broadcasting to each

party's counsel in this case.

' 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 belore this Court through is own

attorneys. See 28 U.S.C. 518(a); 28 C.F.R. 0.20(a).

Minority Ownership Taskforce, FCC, Minority Ownership in

Broadcasting \-3, 8-12, 30-31 (1978) [Task Force Report]. That

policy permits licensees whose licenses have been designated for a

revocation hearing, or whose renewal applications have been

designated for a hearing on qualification issues, to transfer or

assign the license at a “distress sale” price, but only to applicants

who have a significant minority ownership interest and meet other

qualifications. Jd. at 983. The Commission explained that the

policy was being adopted because “[f]ull minority participation in

the ownership 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 purposes of the distress sale 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. To be

eligible to make a distress sale purchase, an applicant must meet

ithe Commission’s basic qualifications and have a minority owner-

ship interest that exceeds 50% or is controlling, except that an ap-

plicant organized as a limited partnership will be deemed to be one

with “significant minority involvement” if there is a general partner

who is a minority with a 20% interest in the partnership and who

will exercise “complete control over a station’s affairs.” See Com- .

mission Policy Regarding the Advancement of Minority Owner-

ship in Broadcasting, 92 F.C.C.2d 849, 853, 855 (1982). To receive

Commission approval, the distress sale price must be no higher

than 75% of the combined fair market value of the station and

license. See Grayson Enterprises, Inc., 47 Rad. Reg. 2d (P & F)

287, 293 (1980).°

* This programming diversity rationale has also been invoked to support several

other FCC policies designed to promote greater Minority participation in broad-

casting, including the policy of awarding preferences for minority Ownership in

comparative license proceedings at issue in Metro Broadcastung v. FCC, No.

89-453. See U.S. Amicus Br. 3.3, Metro Broadcasting, Inc... FCC, No. 89-453.

> From fiscal years 1979 through 1988, the FCC has approved only 38 distress

sales. During that same period, the Commission approved a total of approximate-

ly 10,000 sales of broadcast stations. See FCC Br. 43--+44 & nn.43, 44.

4

2. The FCC’s proceedings at issue here involve the broad-

cast license for Channel 18 (WHCT-TV), Hartford, Connec-

ticut, held by Faith Center, Inc. After the Commission had

designated Faith Center’s license renewal application for a hear-

ing, Faith Center twice sought and received the Commission's

approval to make a distress sale. See Faith Center, Inc., 88

F.C.C.2d 788 (1981); Faith Center, Inc., 54 Rad. Reg. 2d (P &

F) 1286 (1983). In each instance, however, Faith Center was

unable to close the transaction. As a result, its renewal applica-

tion reverted to designated-for-hearing status. Pet. App. 6a-8a,

116a-117a.

In December 1983, respondent Alan Shurberg, the sole owner

of Shurberg Broadcasting Company of Hartford, Inc. (collec-

tively “Shurberg”), tendered an application to the FCC for a

permit to build a television station in Hartford, an application

that was mutually exclusive with Faith Center’s pending renewal

application for Channel 18. In April 1984, Shurberg asked the

Commission to designate that application for a comparative

hearing with Faith Center’s pending application. In June,

however, Faith Center once again sought the Commission’s ap-

proval to make a distress sale, this time requesting permission to

sell to petitioner Astroline Communications Company Limited

Partnership, a minority-controlled applicant. Shurberg opposed

the distress sale on a number of grounds, including his conten-

tion that the Commission’s distress sale policy violated his con-

stitutional right to equal protection. Pet. App. 8a-9a.

In December 1984, the FCC approved Faith Center’s applica-

tion for permission to assign its broadcast license to petitioner

under the distress sale program. Pet. App. 113a-129a; see Faith

Center, Inc., 99 F.C.C.2d 1164 (1984). The Commission re-

jected Shurberg’s constitutional challenge to the minority dis-

tress sale program as “without merit,” citing the 1978 Policy

* The FCC rejected Shruberg’s argument that he was entitled to a com-

parative hearing against Faith Center's renewal application, concluding that

the

minority Ownership policies, as reflected here in the distress sale pro-

posal, are sufficiently important to warrant maintaining Faith Center's

renewal application in hearing status, protected from competing applica-

.

Statement, the Task Force Report, and decisions of the District

of Columbia Circuit such as West Michigan Broadcasting Co. v.

FCC, 735 F.2d 601, 609-611 (1984), cert. denied, 470 U.S. 1027

(1985), which have “repeatedly defined as an important public

interest objective the participation of heavily underrepresented

minorities in the ownership and operation of broadcast

Stations.” Pet. App. 123a. Finally, the Commission concluded

that Congress, in requiring that the Commission incorporate

“significant preferences for minority applicants” into a random

lottery selection scheme for the award of licenses to conduct or

operate new stations, see 47 U.S.C. 309(i)(3)(A), has “reaf-

firmed the importance of fostering minority ownership of

broadcast stations.” /bid.

Shurberg then filed a petition for review of the Commission’s

order in the District of Columbia Circuit.’ Meanwhile, on

January 23, 1985, Faith Center and petitioner closed the distress

sale. Petitioner bought the Channel 18 license and station assets

tions, for a sullicient additional time to permit us to consider the pending

applications to assign the license to [petitioner].

Pet. App. 12la. The Commission also rejected Shurberg’s application for a

construction permit because he had not complied with controlling regulations.

See 47 C.F.R. 73.3516(e). Lastly, the Commission rejected Shurberg’s conten-

tion that petitioner was not a bona fide minority-controlled applicant. Pet.

App. 125a-126a.

’ The disposition of Shurberg’s appeal was delayed tor several years while

the Commission began a reconsideration of its minority preference policies.

See U.S. Amicus Br. 4-5 n.4, Metro Broadcasting, Inc. ¥. FCC, No. 89-453. In

1987, Congress enacted an appropriations rider that proh'bued the Commis-

sion trom spending any appropriated funds “to repeal, to retroactively apply

changes in, Or tO continue a re-examination of” its minoruy and female

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

Congress has since extended 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 reimstated ity policy of preterring

minoriy-controlled applicants im distress sales. See Order (MM Docket No

86-484), 3 F.C.C. Red 766 (1988). The FCC then reattirmed its earlier decision

in this case approving Fauh Center's application tor permission to assign its

broadcast license to petitioner under the distress sale program. See Fuwh

Center, Inc., 3 F-C.C. Red 866 (1988).

6

for $3.1 million; the fair market value of the license and station

assets had been appraised at $6,520,000. See Pet. App. Ila, 30a

n.17.

3. In March 1989, a divided court of appeals reversed. Pet.

App. la-112a.* In a brief per curiam opinion, the panel majori-

ty held that the Commission’s minority distress sale policy

“unconstitutionally deprives Alan Shurberg and Shurberg

Broadcasting of their equal protection rights under the Fifth

Amendment because the program is not narrowly tailored to

remedy past discrimination or to promote programming diversi-

ty.” Id. at 2a. The court accordingly remanded the case to the

Commission for further proceedings. Judges Silberman and

MacKinnon, who comprised the panel majority, each filed

separate opinions concurring in the judgment. See id. at 3a-52a

(Silberman, J.); id. at 53a-69a (MacKinnon, J.).’

In Judge Silberman’s view, the Commission sought to justify

its minority distress sale program “both as a means to foster

diverse programming and as a remedy for past discrimination.”

Pet. App. 25a. Turning first to the latter justification, he stated

that “[nJeither Congress nor the FCC ever found any evidence

* While the case was pending before the court of appeals, petitioner entered

imto voluntary reorganization proceedings under Chapter 1! of the Bank-

ruptcy Code. See Order, Jn re Astroline Communications Co., No. 2-88-01125

(Bankr. D. Conn. Dec. 1, 1988). That bankruptcy proceeding remains pend-

ing. Petitioner has informed the FCC that its financial condition and tuture

operation of the television station are uncertain. See Arnold L. Chase, 4

F.C.C. Red 5085 (1989); see also FCC Br. 16 n.16.

* As a threshold matter, Judge Silberman concluded that the Commission

had properly applied the governing statute and regulations (47 U.S.C. 307(c);

47 C.F.R. 73.3516(e)) in concluding that Shurberg was not entitled to a com-

parative hearing. See Pet. App. 13a-17a. Neither Judge MacKinnon nor Chiet

Judge Wald disagreed with this conclusion.

In addition, Judge Silberman concluded that the Commission had not ex-

ceeded its statutory authority under the Communications Act of 1934 when ut

adopted the minority distress sale policy. See Pet. App. 17a. Judge Mackin-

non apparently agreed with this conclusion. See id. at 56a (“the case has lev-

eled down to a constitutional attack on the distress sale policy”). Chief Judge

Wald addressed the constitutional issue in light of the majority's decision to do

so. See id. at 72a-73a 1.3.

to link minority ‘underrepresentation’ to discrimination by the

FCC or to particular discriminatory practices in the broad-

casting industry,” id. at 27a, and that, in any event, the Com-

mission’s program “does not conform to the stricture of the

Constitution because it is not narrowly tailored to remedy past

discrimination,” id. at 29a. With respect to the programming

diversity rationale, Judge Silberman rejected the proposition

that such an interest, in the context of this case, is sufficiently

compelling to support the race-based preference. See id. at

36a-4la. He noted, among other things, that the Commission,

in recently abandoning the “fairness doctrine,” had determined

“that there is no longer an inadequate diversity of viewpoints

in television programming.” /d. at 40a. Judge Silberman con-

cluded that, in any event, the Commission’s distress sale policy

was nol narrowly tailored to achieve that goal. “As a means to

promote diverse programming, the distress sale policy rests on

the questionable premise that minority ownership will by itself

lead to minority programming (or programming that might be

thought to have a minority perspective).” /d. at 41a-42a.

Judge MacKinnon concurred in the judgment, concluding

that the Commission’s minority distress sale program “does not

satisfy the ‘narrowly tailored’ requirement of equal protection

analysis.” Pet. App. 54a.'® In his view, “the program is open-

ended in that circumstances may cause it to be applied to any

broadcast licensee without regard to any past discrimination.”

Id. at 61a. Accordingly, Judge MacKinnon concluded that the

program “unduly burdens innocent nonminorities.” /d. at 66a.

Chief Judge Wald dissented, concluding that the “majority’s

invalidation of the Commission’s ten-year old minority distress

sale program * * * impermissibly Overturns a considered con-

gressional judgment as to the appropriate means of assuring

diversity Of viewpoint over the national airwaves.” Pet. App.

'’ For that reason, Judge MacKinnon chose not to reach the question

“whether ether promoting programming diversity or remedyimg societal

discrimination [is] a sufficiently compelling governmental interest to support

the use Of government sponsored minority preference programs.” Pet. App.

60a ntl.

70a. Chief Judge Wald accepted as both reasonable and sup-

ported by congressional fact finding the connection between

minority ownership and diversity of programming. See id. at

92a-100a. She also disputed the conclusion that the Commis-

sion’s program impermissibly burdens innocent nonminorities,

finding that “the very limited circumstances in which the distress

sale policy can be invoked, suggest that the burden the policy

places On nonminority applicants is acceptable.” /d. at 109a.''

SUMMARY OF ARGUMENT

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

therefore constitutionally suspect. In City of Richmond v. J.A.

Croson Co., 109 S. 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 “compell-

ing governmental interest.” In our view, a racial classification

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 achieve a compelling governmental interest, a deter-

mination made 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 program is required, and only if this determination

has a demonstrable basis in fact. And any such racial classifica-

tion must be narrowly tailored to achieve the compelling

governmental interest identified by Congress.

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

pelling justification for a racial classification: remedying the ef-

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

suggestions of rehearing en banc, filed by both petitioner and the FCC. Pet.

App. 143a-154a; id. at 155a-160a. Chiet Judge Wald, joined by Judges Robin-

son, Mikyva, Edwards, and Ruth B. Ginsburg, dissented from the denial of

rehearing en banc. /d. at 15Sa-160a.

9

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 adopt or maintain the minority

distress sale policy in order to remedy prior discrimination. Sec-

ond, even if Congress could somehow be viewed as having ad-

vanced a remedial justification, it cannot be said that Congress

had sufficient evidence before it of prior discrimination in the

broadcasting industry —let alone in the awarding of broadcast

licenses —to justify race-conscious relief. Third, the FCC, the

agency that authored the “policy” Congress has frozen, has con-

sistently taken the position that its policy is not designed to

remedy prior discrimination in the broadcasting industry. And

finally, the amorphous notion of prior “societal discrimination”

may not serve as an adequate substitute justification.

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

adopted to remedy prior identified discrimination, it is plainly

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

Congress nor the Commission has adequately considered, much

less tried, less intrusive race-neutral means to increase minority

ownership of broadcasting licenses. Moreover, the minority

distress sale policy is not aimed at correcting the actual effects

of past discrimination, but instead reflexively confers an ex-

clusive governmental benefit on all who possess the requisite

skin coior or ethnic background.

B. The second asserted justification for the minority distress

sale policy is to further diversity of programming. But this

Court has never held that such a quest for programming divers-

ity is 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 broad-

casting spectrum — would so qualify. The idea that the govern-

ment has a compelling interest in promoting viewpoints iden-

tified with specific racial or ethnic groups is deeply troubling,

and appears to boil down to the type of racial stereotyping that

is anathema to basic constitutional principles.

10

Moreover, even if programming diversity could count as a

compelling governmental interest, neither Congress nor the

FCC has established the factual predicates necessary to support

the use of racial classifications to promote programming diver-

sity. The legislative history shows at most that Congress 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 ownership would translate into

more “minority” programming. Nor does the administrative

history of the FCC’s policy offer anything to shore up this in-

adequate factual record.

Putting aside the evidentiary difficulties with the “programm-

ing 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

it has ever been attained.

C. Finally, other novel justifications now advanced by the

Commission and certain amici in support of the distress sale

policy fare no better under the pertinent constitutional analysis.

REO site b

Apart from the fact that none of these new justifications have

been expressly invoked by Congress or previously relied upon by

the FCC, each suffers from many of the same analytical defi-

ciencies as the remedial and programming diversity theories.

And the continued search at this late stage for an alternative ra-

tionale only reinforces the conclusion that the Commission’s

minority preference policies—inherently suspect because they

classify on the basis of race and ethnic background — are policies

in search of an adequate supporting justification.

ARGUMENT

THE FEDERAL COMMUNICATIONS COMMISSION’S

MINORITY DISTRESS SALE POLICY, WHICH PERMITS

CERTAIN LICENSES TO BE TRANSFERRED ONLY TO

MINORITY-CONTROLLED FIRMS, VIOLATES THE

EQUAL PROTECTION COMPONENT OF THE FIFTH

AMENDMENT

1. Classifications By The Federal Government On The Basis Of

Race May Be Sustained Only If “Narrowly Tailored” To

Achieve A “Compelling” Interest

A. The federal policy at issue in this case provides a

valuable government benefit to applicants for broadcast

licenses, but only if they are Black, Hispanic, Oriental, Indian,

Eskimo, or Aleutian. It plainly classifies on the basis of race and

thus conflicts with the fundamental principle embodied 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).

In City of Richmond vy. J.A. Croson Co., 109 S. Ct. 706

(1989), five Members of the Court concluded that a state or

local government’s use of a racial or ethnic classification is sub-

ject to “strict scrutiny,” that is, the classification must be “nar-

rowly tailored” to achieve a “compelling governmental interest.”

Id. at 720-721 (1989) (opinion of O’Connor, J., joined by Rehn-

quist, C.J., and White and Kennedy, JJ.); id. at 735 (Scaiia, J.,

concurring in the judgment). The first part-of that constitu-

tional analysis focuses on the asserted “compelling governmen-

tal interest” supporting the questioned classification, and in-

volves two related inquiries: identifying the interest and deter-

mining whether it has a sufficient basis in fact. A majority of

the Court has thus far endorsed only one justification for a

racial classification that may in appropriate circumstances be

sufficiently compelling: the government’s interest “in ameliorat-

ing, Or eliminating where feasible, the disabling effects of iden-

tified discrimination,” Regents of the University of Cal. v.

Bakke, 438 U.S. 265, 307 (1978) (opinion of Powell, J.). See

12

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 v. Jackson Bd. of

Educ., 476 U.S. 267, 274 (1986) (plurality opinion).'? The Court

has also established that there must be a “strong basis in

evidence for [the government’s}] conclusion that remedial action

was necessary.” Croson, 109 S. Ct. at 724 (opinion of the Court)

(internal quotation marks and citation omitted); see also id, at

727; Wygant, 476 U.S. at 277 (plurality opinion); id. at 286

(O’Connor, J., concurring in part and concurring in the judg-

ment). 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 un-

questionably legitimate.” Croson, 109 S. Ct. at 724 (opinion of

the Court) (quoting Fullilove v. Klutznick, 448 U.S. 448,

$33-535 (1980) (Stevens, J., dissenting)).

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 singled out by a majority of the Court in Croson and

are particularly significant: (1) whether alternative race-neutral

remedies were considered 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 discrimination the program is designed

to remedy. See, e.g., Croson, 109 S. Ct. at 728-729; id. at 734

(Stevens, J., concurring); United States v. Paradise, 480 U.S

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

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

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

context of promoting a diverse studemt body or a diverse faculty in higher

education. See Bakke, 438 U.S. at 311-315 (opimon ot Powell, J.); Wygans,

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

ing); see also id. at 286 (O'Connor, J., concurring in part and concurring in the

judgment)

13 °

149, 171 (1987) (plurality opinion); Wyganit, 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

duration of the remedy, and the effect of the classification on

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

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

curring in the judgment); Fullilove, 448 U.S. at 514-515

(Powell, J., concurring).

B. For the reasons detailed in our brief submitted as amicus

curiae in Metro Broadcasting, Inc. v. FCC, No. 89-453 (at

12-17), racial classifications adopted by the federal government

must also withstand the “strict scrutiny” standard applied to

those adopted by state and local governments. 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 that

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

significant deference. But this additional deference is appropri-

ate only if Congress itself makes the critical determination that

such a program is required, and only if this determination has

an adequate basis in fact. And any such racial classification

must be narrowly tailored to achieve the compelling interest

identified by Congress.

ll. The Federal Communication Commission’s Minority

Distress Sale Policy ls Not “Narrowly Tailored” To Achieve

A “Compelling” Interest

The initial question presented by this case, therefore, ts

whether any “compelling” governmental interest may be found

to justify the FCC’s minority distress sale policy, a policy that

permits certain licenses to be transferred only to munority-

controlled firms. The second question is whether that policy ts

“narrowly tailored” to achieve the identified compelling govern-

mental purpose. The Commission’s policy tails on both scores.

14

A. 1. 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 pp. 11-12, supra. Although petitioner

acknowledges (Br. 43) that “the principal goal of the distress

sale policy is to promote diversity of expression, not to remedy

prior discrimination,” both petitioner (Br. 26-27 n.11) and the

Commission (Br. 21-28) also argue that the distress sale policy

may be sustained as an exercise of Congress’s power to remedy

prior discrimination.'? For reasons set forth more fully in our

brief in Metro Broadcasting (at 18-23), we do not believe that

asserted interest may be invoked here.

First, Congress has not specifically mandated through appro-

priate statutory language that the Commission adopt or main-

tain the minority distress sale policy in order to remedy prior

discrimination. See U.S. Amicus Br. 14-15, Metro Broadcasi-

ing, Inc. v. FCC, No. 89-453. The lottery statute, 47 U.S.C.

309(i)(3)(A), by its terms directs the FCC to adopt a minority

preference only when awarding an initial license or construction

permit “through the use of a system of random selection.” /d.

309(i1)(1). It does not purport to authorize the use of preferences

under the distress sale policy. And the appropriations riders,

which provide that the FCC is not to spend appropriated tunds

As we explained in our brief in Metro Broadcasting (at 22, 27-28), the

FCC has consistently taken the position that ils preference policies are nol

designed.4o remedy prior discrimination in the broadcasting industry. In this

case, for example, the Commission stated in the court of appeals that is

“minority ownership policies are based principally on the Commission's

authority under the Communications Act to encourage diversity of program-

ming on broadcast stations. The FCC’s primary goal is not to remedy past

discrimination.” FCC C.A. Br. 29-30; J.A. 99-101; see Pet. App. 25a, 79a. As

we understand the argument in its brief in this Court, the Commission does

nol retreat trom its previously documented position regarding Ws own fra-

uionale for these policies, but simply asserts the remedial justification as one

purportedly advanced by Congress. See Br. 21-31. The Commission does sug-

gest in passing (Br. 30-31) that its otherwise “justifiable efforts” in regulating

the broadcasting industry may have imadvertently hampered minority owner-

ship of stations. That unsupported assertion is scarcely Lantamount to a con-

fession of prior discriminatory conduct, nor do any such madvertent effects

amount to unconstituuional discrimination of the sort that might justily race-

conscious remedial action.

15

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

changes in, or to continue a re-examination of [the

Commission’s minority distress sale policy},” 101 Stat. 1329-31

to 1329-32; 102 Stat. 2216-2217; 103 Stat. 1020-1021, by their

terms Only direct that the status quo be maintained with respect

to the Commission’s policies — policies that have previously been

understood to be grounded in the “programming diversity” ra-

tionale, rather than in any finding of prior discrimination. See

note 13, supra; FCC Br. 32-34.'*

Nor do the legislative histories of these provisions show that

Congress harbored any specific intention to require—or en-

dorse —Commission action to remedy prior discrimination by

means of a distress sale policy. The history of the appropria-

tions riders suggests that Congress understood the FCC’s

distress sale policy to be grounded in the programming diversity

justification, not an anti-discrimination rationale. See U.S.

Amicus Br. 20, 25-26, Metro Broadcasting v. FCC, No. 89-453.

'* Although both the Commission (Br. 28-31) and petitioner (Br. 26-27

n.11) suggest that the lottery statute and the appropriations riders may be

regarded as an exercise of Congress's enforcement power under Section 5 of

the Fourteenth Amerdment, neither party adequately explains how Section 5

can be applied to address alleged discrimination in an area regulated by the

Jederal government. Section 5 gives Congress power to legislate only with

respect to Section | of the Fourteenth Amendment, which in turn is concerned

with state as opposed to tederal action. See U.S. Amicus Br. 18 1.10, Metro

Broadcasting v. FCC, No. 89-453. The only way to attribute ownership pat-

terns in the broadcasting industry to state discrimination would be to adopt a

theory of “societal discrimination” that is so amorphous it would effectively

eliminate any distinction between remedial and nonremedial racial classifica-

tions. See pp. 17-19, infra.

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

be acting under Section 5 to rectify past discrimination in the awarding of

public works contracts by the Srares. In any event, the Court need not reach

the broader question whether Congress would have the power to adopt

remedial race-conscious legislation tor the broadcasting industry under Sec-

tion 5 of the Fourteenth Amendment (or for that matter, under Section 2 of

the Thirteenth Amendment, see Jones v. Alfred H. Mayer & Co. , 392 U.S. 409

(1968), which neither petitioner nor the FCC claims), since in our view it is

clear that Congress has not attempted to do so with the requisite speciticity or

with the kind of supporting evidence required by Fullilove.

When Congress has enacted racial preferences that appear to be consistent

with the standards set forth herein, the United States has defended such

legislation against constitutional challenges. See, e.g., Carpenter v. Thorn-

burg, No. 88-3578 (4th Cir. Jan. 16, 1990).

16

And although the conference committee report on the legisla-

tion that adopted the lottery provision mentions a possible

remedial justification in passing, H.R. Conf. Rep. No. 765,

97th Cong., 2d. Sess. 43 (1982), this reference—which was

directed to a different preference program—cannot, as the

Commission suggests (Br. 22-23, 24, 27, 28), substitute for an

express congressional directive to maintain the distress sale

policy in order to overcome past discrimination.

Second, even if Congress could somehow be viewed as having

adopted a remedial justification, Congress did not have suffi-

cient evidence before it of prior discrimination in the broad-

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

Croson, 109 S. Ct. at 727 (opinion of the Court); Wygant, 476

U.S. at 277 (plurality opinion); Fullilove, 448 U.S. at 533-535

(Stevens, J., dissenting). To the contrary, as Judge Silberman

correctly observed, Pet. App. 28a-29a, there can be no claim

based on the sparse legislative history of the appropriations

riders that Congress had before it evidence suggesting that

minorities have been denied effective participation in the broad-

casting industry either because of official or private acts of

discrimination. This is rather a case like Croson, in which

“{t}here is nothing approaching a prima facie case of constitu-

tional or statutory violation by anyone” in the broadcasting in-

dustry. 109 S. Ct. at 724 (opinion of the Court).

Nor does the bare mention of a possible remedial justification

in the legislative history of the lottery program constitute the

kind of factual predicate necessary to sustain the use of a racial

classification. Compare Fullilove, 448 U.S. at 463-467 (opinion

of Burger, C.J.) (relying on extensive legislative history of

related legislation). To begin with, the relevant statement —the

“Conferees find that the effects of past inequities stemming

from racial and ethnic discrimination have resulted in severe

underrepresentation of minorities in the media of mass com-

munications * * *,” H.R. Cont. Rep. No. 765, supra, at

43—carefully avoids asserting that there in fact has been any

discrimination in the broadcasting industry. Rather, it speaks ot

“underrepresentation” of minorities in “media of mass com-

munications” (not explicitly broadcasting), resulting trom

17

“the effects of past inequities,” which in turn have “stemmed”

from racial and ethnic discrimination. The statement therefore

at most asserts that generalized societal discrimination has had

an effect on the communications industry, not unlike the effect

such discrimination would have across the board; it does not

make any finding of past discrimination in broadcasting or by

the FCC. This is confirmed by an earlier conference report,

which described the rationale for the lottery preference in this

way:

It is the firm intention of the conferees that ownership

by minorities, such as blacks and hispanics, * * * and

ownership by other underrepresented groups, such as labor

unions and community organizations, is to be encouraged

through the award of significant preferences in any such

random selection proceeding. These are the groups which

are inadequately represented in terms of nationwide

telecommunications Ownership, and it is the intention of

the conferees * * * that the objective of increasing the

number of media outlets owned by such persons or groups

be met.

H.R. Conf. Rep. No. 208, 97th Cong., Ist Sess. 897 (1981). This

Statement makes no mention of discrimination at all. Thus, it is

far from clear whether the conferees, in calling for a racial

preference in a lottery system, were focusing om the need to

remedy identified discrimination in the broadcast industry, or

were simply intent on increasing minority ownership of broad-

cast licenses for its own sake—a clearly impermissible govern-

mental objective. See p. 19, infra.

Given this legislative record, it is not surprising that the Com-

mission (Br. 30-31) and amici (e.g., Congressional Black

Caucus, et al., Br. 18-24), frankly seek to justify the preference

policies as an effort to remedy prior “societal discrimination.”

This Court has tended to viewed such arguments with great cau-

tion, see Croson, 109 S.Ct. at 723 (plurality opinion); Wyganz,

476 U.S. at 276 (plurality opinion); Bakke, 438 U.S. at 307

(opinion of Powell, J.), and with good reason. The type of

“societal discrimination” invoked by the Commission and others

18

operates at such a diffuse level that it would justify the use of

racial preferences in virtually every aspect of organized social

lite. The inherently suspect nature of racial classifications re-

quires a more focused and meaningful inquiry. In this case, tor

example, no one maintains that the Commission has discrimi-

nated against minorities in awarding broadcast licenses. And

although the contention is made that the original allocation of

broadcast licenses occurred at a time when “most licenses [were]

awarded to white males,” ACLU Amicus Br. 19, this hardly

amounts to proof or even an assertion of prior discrimination,

and does not mean that the original allocation has remained

frozen since then or that later changes in the allocation were in-

fected by discrimination. Any such claim ignores the realities of

the modern broadcasting industry, where it appears that

roughly 1000 radio stations and 250 television stations (approx-

imately 9% of all broadcast stations) are sold each year.'> Thus,

as long as there is no discrimination today in the broadcast in-

dustry, minority groups should have the same opportunity to

obtain broadcast licenses as nonminorities do. To the extent

they do not or cannot avail themselves of that equal oppor-

tunity, it is not because of discrimination in the broadcast in-

dustry or by the FCC.

lt follows that the “societal discrimination” advanced in this

case boils down to the proposition that, because of past

discrimination, Blacks and other minority groups have, on

average, accumulated tewer of the skills and resources needed to

acquire the tinancing and prior experience necessary to secure a

broadcasting license than, again on average, nonminorities

have. But this type of societal discrimination is so “amorphous,”

Wyeant, 476 U.S. at 276 (plurality opinion), that it would

justly the use of racial preferences in virtually any business

where there is “underrepresentation” of minorities. Moreover, it

would seemingly require that those preferential policies remain

These figures are based on the FCC's estimate that approximately one-

half of all transter apphcations approved each year retlect station sales (as op-

posed to reorganizations), and on averages over the past 10 years. See Broad-

cast: Mass Media Application Statistics, FCC Ann. Rep. (Fiscal Years

1979-1988)

ee eee

19

in effect until all racial and ethnic groups have reached exact

“parity” in every industry or segment of society. If racial

preferences can be justified by “discrimination” identified at this

level of abstraction, then any meaningful distinction between

legitimate remedial action and preferences for preferences sake

would disappear.

The FCC has avoided suggesting that it may seek to promote

diverse ownership as an end in itself. As Justice Powell stated,

“[pjreferring 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 S. Ct. at 721 (plurality opinion); id. at 730-734

(Stevens, J., concurring in part and concurring in the

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

ment). Nevertheless, given the inadequate supporting record

and the confused state of affairs surrounding its preference

policies, the Commission may well be pursuing jus: that sort of

impermissible endeavor.

2. Even if it could be said that the FCC’s minority distress

sale policy was adopied to remedy prior identified discrimina-

tion, it is plainly not “narrowly tailored” to achieve that alleged

purpose.'® First, neither Congress nor the Commission has ade-

quately considered less intrusive race-neutral means to increase

minority ownership of broadcasting licenses. See, e.g., Croson,

109 S. Ct. at 728; Fullilove, 448 U.S. at 463-467 (opinion of

Burger, C.J.); id. at 511 (Powell, J., concurring). The FCC (Br.

38-39) suggests that recent efforts to increase the total number

of radio and television stations and to relax certain financial re-

quirements fpr prospective license holders show that it has con-

sidered race-neutral measures to remedy the effects of prior

discrimination. But it is implausible to regard these as steps

taken to rectify prior discrimination, since the Commission

itself has never regarded the lack of minority ownership of

‘© Petitioner contends (Br. 27-29) that the Court should deter to the choiwe

Ot race-conscious Measures adopted by the Congress and the Commussion. For

the reasons explained in our briet in Metro Broadcasting (at 1$-17), the Court

has already eschewed such an approach.

20

broadcasting licenses to be the result of discrimination in the

broadcasting industry. See p. 14 & note 13, supra. In any event,

with one exception,'’ these measures were not designed to in-

crease diversity of ownership of broadcast licenses, as opposed

to increasing diversity of programming, and thus they have no

nexus to the stated rationale.

Second, the minority distress sale policy is not aimed at cor-

recting the actual effects of past discrimination. See, eé.g.,

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

ing in part and concurring in the judgment); Paradise, 480 U.S.

at 171 (plurality opinion); Fullilove, 448 U.S. at 480-482,

486-488 (opinion of Burger, C.J.); id. at 510 (Powell, J., con-

curring). In particular, the policy, as applied, does not permit

an inquiry to determine whether any particular minority appli-

cant was in fact not disadvantaged by past discrimination. As

Judge Silberman observed, the distress sale policy “in no way re-

quire{s] the preference to be tied to the disadvantage suffered by

the minority enterprise. There is no opportunity here to ensure

that participating minority enterprises have actually been disad-

vantaged by past discrimination or its effects.” Pet. App. 30a;

see id. at 61a-63a (Mackinnon, J., concurring in the judgment).

The Commission (Br. 42-46) and petitioner (Br. 30-39) take

pains to point out that the distress sale policy, which in practice

applies in a relatively narrow set of circumstances (see pp. 2-3,

supra), has accounted for only 38 sales over the past decade —a

period during which the Commission approved approximately

10,000 sales of broadcast stations (see note 5, supra). But the

fact that explicit consideration of race or ethnic background is

limited to a few cases does not mean that such consideration ts

“narrowly tailored” in a constitutionally relevant sense. For ex-

ample, it does not mean that the policy will be applied only to

those who are truly disadvantaged or only when it will not injure

innocem third parties. As this case makes plain, minority

’ The Commission’s “procedures to dissemimate more widely information

about the availability of potential minority buyers of broadcast stations” (FCC

Br. 39) would appear to be an effort to imerease minority Ownership ol

licenses, as Opposed to minority-onented programming.

21

ownership is the determinative factor in the Commission’s ap-

proval of the distress sale, whether or not the applicant can

show that the particular minority owner has been disadvan-

taged.'* As Judge Silberman noted, the FCC’s policy can clearly

injure third parties: “It is a Hartford station Shurberg wants

and, after all is said and done, he has been absolutely denied an

opportunity to compete for one merely because of his race.”

Pet. App. 35a; see id. at 66a-68a (MacKinnon, J., concurring in

the judgment).'* Finally, the fact that the Commission may

have discriminated on the basis of race or ethnic origin only 38

times in the past decade through this program is in any event a

curious defense of that program’s legitimacy.

B. 1. The second asserted justification for restricting access

to the distress sale program on the basis of skin color and ethnic

background — and the one on which the Commission (Br. 23-24,

32-34, 35-38) and petitioner (Br. 19-26) principally rely —is to

further diversity of programming. As we pointed out in our

brief in Metro Broadcasting (at 24), this asserted justification is

clearly different from any of the rationales previously con-

sidered by this Court in support of minority preference pro-

grams. As we also noted, there is reason to question whether

this justification, as applied to the public broadcast spectrum,

qualifies as “compelling.”

a. There can be no doubt that promoting diversity of opi-

nion and viewpoints is a legitimate governmental interest, suffi-

cient lO sustain content-neutral and race-neutral measures that

do not infringe on fundamental constitutional rights. See

Associated Press v. United States, 326 U.S. 1 (1945) (upholding

application of the antitrust laws to the news media); FCC v. Na-

'* Indeed, in light of certain factual allegations raised by Shurberg, see,

e.g., Br. in Opp. 6-9; J.A. 68-69, there appear to be doubts regarding the pro-

priety of characierizing petitioner as “minority-controlled” by virtue of having

Mr. Ramirez as a general partner.

'* For this reason, the Commission's observation (Br. 44) that a nonminori-

ly applicant can overcome the distress sale preference by filing a timely ap-

plication for a mutually exclusive license merely shows that the distress sale

program ts hkely to affect only a small number of cases. lt does not establish

that the program, where it does apply, is narrowly tailored.

22

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

(upholding FCC rules limiting cross-ownership of broadcast

licenses and newspapers in the same community); United Staies

v. Storer Broadcasting Co., 351 U.S: 192 (1956) (upholding

FCC rules limiting the total number of stations in any service

area that a person may own or control). With respect to the

newsprint media, however, this Court has held that the promo-

tion of diverse viewpoints is not sufficiently compelling to

justify coercive governmental measures that interfere with the

First Amendment rights of newspaper publishers. Miami Herald

Publishing Co. v. Tornillo, 418 U.S. 241, 248 (1974). The Court

had previously reached a contrary conclusion with respect to the

broadcast media in Red Lion Broadcasting Co. v. FCC, 395

U.S. 367 (1969), but did so largely because of factual cir-

cumstances —a perceived scarcity of broadcast outlets — that the

Commission has recently determined no longer exists. See pp.

25-26, infra. lt is thus far from clear that the interest in pro-

moting “programming diversity” is sufficiently compelling to

justify the use of racial classifications that would otherwise in-

fringe upon equal protection rights.

The idea that the government has a compelling interest in pro-

moting viewpoints identified with specific racial or ethnic

groups is also deeply troubling. The proposition that certain

minority groups have distinctive tastes and preferences in pro-

gramming, and that minority owners will be more disposed than

nonminority owners to offer such programming, have not been

demonstrated by credible empirical evidence. See pp. 23-25, in-

fra. But even if they were, it is quite another thing for the

government to adopt an official presumption that the color of a

person’s skin or his ethnic background will predict the way he

will think and act. These types of presumptions — usually re-

ferred to as stereotypes— “carry a danger of stigmatic harm”

and “may in fact promote notions of racial inferiority and lead

to a politics of racial hostility.” Croson, 109 S. Ct. at 721.°°

* Petmioner’s submissions to the Commission regarding its proposed

“minority programming” appear to contirm that these types of race-conscious

preferences may lead to stereotyping. See, e.g., J.A. 24-27, 31-33.

23

b. Even if programming diversity might in theory qualify as

a compelling governmental interest, there are other reasons why

it Cannot sustain the Commission’s distress sale policy. As in the

case of the FCC’s comparative license preference policy (U.S.

Amicus Br. 25-26, Metro Broadcasting, Inc. v. FCC, No.

89-453), Congress nas never adopted legislation that expressly

directs the FCC to adopt a distress sale policy in order to pro-

mote programming diversity. The most that can be said is that

there are expressions in the legislative history of the appropria-

tions riders indicating that individual members of Congress ap-

proved of that policy. See, e.g., S. Rep. No. 182, 100th Cong.,

Ist Sess. 76 (1987); 134 Cong. Rec. $10,021 (daily ed. July 27,

1988) (statement of Sen. Hollings); 133 Cong. Rec. $14,395

(daily ed. Oct. 15, 1987) (statement of Sen. Lautenberg). But

when Congress seeks to require the use of racial classifications

that would otherwise violate equal protection, it must make its

intention “unmistakably clear in the language of the statute.”

Dellmuth v. Muth, 109 S. Ct. 2397, 2400 (1989) (citation

omitted). A bland directive in a massive appropriations rider

that by its terms merely directs that no money be spent during

the fiscal year to change the status quo does not satisfy this re-

quirement. See Hampion v. Mow Sun Wong, 426 U.S. 88,

114-116 (1976); see also TVA vy. Hill, 437 U.S. 153, 190-191

(1978).

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

expressly directed the Commission to award minority prefer-

ences in order to enhance- programming diversity, it cannot be

said that Congress had an adequate basis in fact to justify such

action. In order to demonstrate the need for racial preferences

on this rationale, it would be necessary to show: (1) that dif-

ferent racial or ethnic groups have distinctive listening or view-

ing tastes; (2) that one or more of these distinctive racial or

ethnic tastes are being undersupplied by today’s broadcasting in-

dustry; and (3) that increasing the percentage of m'nority

owners would overcome the shortage of programming that

serves these distinctive tastes. See Winer Park Communications

Vv. FCC, 873 F.2d 347, 358 (D.C. Cir. 1989), cert. granted, 110

S. Ct. 715 (1990) (Williams, J. dissenting). To the extent

24

that Congress even perceived the need to resolve these ques-

tions, however, it merely assumed the answers. See Pet. App.

46a.

The FCC (Br. 9-10, 36-37) and petitioner (Br. 45-47) point

out that there is scattered anecdotal testimony offered by

various individuals and interest groups in congressional hear-

ings that might support one or more of these propositions.?'

But 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 informa-

tion is an inadequate basis for invoking an otherwise suspect

racial classification.

The Commission also suggests (Br. 26, 36 n.32) that Congress

could have properly relied on a recent report filed by the Con-

gressional Research Service that purports to document a corre-

lation between minority Ownership and diverse programming.

Congressional Research Service, Minority Broadcast Station

Ownership and Broadcast Programming: Is There A Nexus?

(June 29, 1988). But that report is so fundamentally flawed as to

deprive it of any significance. For example, it fails even to

define “minority programming,” and it fails to take into account

the possible differences in the racial composition of various sta-

tion owners’ audiences. See Winter Park Communications, 873

F.2d at 358-361 (Williams, J., dissenting). In any event, apart

from one passing reference to that report in the pertinent

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

>! See Minority Ownership of Broadcast Stations: Hearing Before the Sub-

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

Transportation, \Olst Cong., Ist Sess. (1989) [/989 Hearing}; Muinority-

Owned Broadcast Stations: Hearing on H.R. 5373 Before the Subcomm. on

Telecommunications, Consumer Protection, and Finance of the House

Comm. on Energy and Commerce, 99h Cong., 2d Sess. (1986); Minority Par-

ucipation in the Media: Hearings Before the Subcomm. on Telecommunica-

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

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

Hearing on H.R. 1155 Before the Subcomm. on Telecommunications, Con-

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

merce, 98th Cong., Ist Sess. (1983).

25

1988) (statement of Sen. Hollings), there are no indications that

Congress even considered, let alone accepted, the tentative find-

ings in the CRS survey in connection with maintaining the ap-

propriations provision blocking the FCC’s inquiry proceeding.??

Finally, the Commission (Br. 2, 26-28, 36-37) and petitioner

(Br. 45-47) contend that Congress could have relied on conclu-

sions reached in the Report of the National Advisory Commis-

sion on Civil Disorders (1968), and the United States Civil

Rights Commission’s monographs, Window Dressing on the

Set: Women and Minorities in Television (Aug. 1977), and Win-

dow Dressing on the Set: An Update (Jan. 1979). But those

reports, by their terms, do not even purport to show that race is

a reliable proxy for programming choices.

Each of the foregoing sources of supposed factual support

for the programming diversity rationale also suffers from a

more fundamental shortcoming. Neither petitioner, nor the

Commission, nor any of-the supporting amici, explain why the

conclusions reached in the various studies —some of which are

more than two decades old—have any continuing relevance

when the Commission itself has determined in another context

that fundamental changes in the broadcasting industry have

eliminated the need for intrusive government regulation in order.

to ensure “programming diversity.” Specifically, because of in-

creased numbers of broadcast outlets, and the introduction of

cable television and other new technologies, the Commission

has decided to abandon the “fairness doctrine,” noting that

there are now a “sufficient number of over-the-air television and

radio voices to insure the presentation of diverse opinions on

issues Of public importance.” Report Concerning General Fair-

ness 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, 110 S. Ct. 717 (1990). As the

Commission has previously recognized, these fundamental

"2 Indeed, Senator Inouye, a leading proponent of the Commission's

minority preference policies, recently acknowledged that Congress “need{s] to

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

promote diversity in the views presented on the airwaves.” 1989 Hearing at 2.

26

changes in the broadcasting industry also call into question the

need for special policies regarding minority ownership designed

to enhance programming diversity.??

If the record before Congress fails to disclose any factual sup-

port for the programming diversity theory, neither does the ad-

ministrative history of the FCC policy offer anything to fill “this

evidentiary void.” Winter Park Communications, 873@F.2d at

358 (Williams, J., dissenting). The Commission initially

adopted its policy not after any careful study of the need for ad-

ditional programming diversity and the relationship between

ownership and programming, 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 in-

creased minority ownership would rectify this shortcoming. See

Garrett, 513 F.2d at 1063.

The administrative record compiled by the Commission, such

as it is, contirms that the Commission also acted on the basis of

untested assumptions.?* In fact, the Commission has candidly

admitted the lack of an evidentiary predicate for the preference

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

ceeding establishes as a tact that

>} The Commission has recognized that those changes in the marketplace

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

programming, and, further, that this phenomenon of increased competi-

tion driving increased program diversity will continue. These findings

demonstrate that in the current environment there is little if any basis to

assume that racial or gender preferences are essential to the availability of

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

to demonstrate that these preferences are essential, what record ts

available suggests otherwise.

Brief tor FCC on Rehearing En Bane at 26-27, Sreele v. FCC, 770 F.2d 1192

(D.C. Cir. 1985).

>4 For example, the 1978 Policy Statement, 68 F.C.C.2d at 981, quotes the

Task Force Report. Tine Task Force Report, in turn, expressly relies on deci-

sions such as TV Y¥ and “arrett tor its endorsement of the proposition that in-

creased minority Ownership will promote “greater diversity in the media.”

Task Force Report at 4; see id. at 4-6.

27

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

program content. * * * The substantial deference normally

accorded the Commission’s judgmental and predictive

determinations cannot justify reliance on suspect classifi-

cations to enhance program diversity in the absence of a

clear and specific foundation upon which to base its con-

clusion. 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, termi-

nated that investigation, see note 7, supra, and thus the Com-

mission has been unable to determine whether the asserted pur-

pose of the minority preference policy has any factual support

either now or over a decade ago when it was first adopted. Con-

gress cannot simultaneously purport to rely on the “findings” of

an administrative agency and yet prohibit that agency from en-

gaging in a more complete inquiry to determine the actual facts.

2. Putting aside the evidentiary difficulties with the “pro-

gramming diversity” rationale, that policy is not “narrowly

tailored” to accomplish the asserted goal. The policy’s goal—

diverse programming —is too indeterminate to allow either the

Commission 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 fits]

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 MacKinnon observed, “because the distress

sale program has no limits of any character it is not sufficiently

tailored to the goal of promoting programming diversity. Com-

pliance is voluntary and the program contains no assurance that

any programming diversity will be achieved. Thus, the FCC,

subject only to the broad public interest standard, has untet-

tered discretion in approving distress sales.” Pet. App. 63a-64a

(footnote omitted).

28

C. Implicitly acknowledging that neither the remedial justi-

fication nor the programming diversity justification will bear

scrutiny, the Commission and certain amici also advance certain ;

other, novel justifications for the FCC’s minority ‘programs. |

None of these new justifications has been expressly invoked by

Congress, nor has any been previously relied upon by the FCC.

Thus, for the reasons noted above and in our brief in Metro

Broadcasting (at 14-15, 19, 22, 25-26), they would not be en-

titled to any additional deference in determining whether the use

of a racial classification is permissible. In any event, they suffer

from many of the same analytical deficiencies as the remedial

and programming diversity theories.

The Commission (Br. at 30) suggests that “[b}roadcasting,

unlike other industries, such as the construction industry in

Fullilove and Croson, involves the use of a unique, limited

resource pursuant to a system of government licensing.” But all

resources subject to government licensing are “unique.” This at-

tribute, by itself, cannot distinguish FCC broadcasting licenses

from offshore oil drilling permits, or patents, or airport landing

rights. If the Commission means to suggest that broadcasting

licenses are of “unique” public importance, the only apparent

reason why this would be so would be because broadcasting

supplies information and opinion to the public; if this is the

underlying reason, however, then the unique resource notion

collapses into a version of the programming diversity argument.

In any event, there is no reason why this “unique resource”

should be, as the Commission suggests (Br. at 31), subject to

“[eJntrenched ownership patterns.” As long as broadcast

licenses are freely bought and sold in the secondary market — as

the Commission’s own data show they are —then it is hard to see

why a minority preference program is necessary to modify the

distribution of broadcasting licenses that existed when the in-

dustry was in its infancy.

Certain amici (ACLU Br. at 9) suggest what they call a “struc-

tural” justification for the FCC preterence programs, based on

an alleged “need to repair the damaged institution through the

use of race or sex as an allocative” criterion. But amici do not

explain why broadcasting is a “damaged institution,” unless it

rte,

'

—w o4- eo

29

has either been distorted by prior discrimination, or is struc-

tured in such a way that it fails to supply diverse programming.

From all that appears, therefore, the “structural” justification is

another name for either the remedial or the programming diver-

sity theory. And to the extent that this justification also carries

the suggestion that there is some permanent imbalance built into

the broadcasting industry stemming from the original allocation

of licenses it, like the Commission’s notion of a “unique

resources,” completely disregards the rapid turnover in broad-

casting authority that should permit any such ir :>alance to be

rectified.

The quest for an alternative rationale only reinforces the con-

clusion that the FCC’s minority preference programs are

policies in search of a supporting justification. This Court has

consistently rejected the idea that the government may pursue a

policy of racial balancing for its own sake. See p. 19, supra. Yet

the creative energies expended in a post hoc effort to uncover a

sustainable rationale for the FCC’s preference programs sug-

gests that this may in fact be all that they represent.

CONCLUSION

The judgment of the court of appeals should be affirmed.

Respectfully submitted.

JOHN G. ROBERTS, JR

Acting Solicitor General*

JAMES P. TURNER

Acting Assistant Attorney General

THOMAS W. MERRILI

Deputy Solicitor General

ROGER CLEGG

Deputy Assistant Attorney General

MUICHAEL R. LAZERWITZ

Assistant to the Solicitor General

MARCH 1990

* The Solicitor General is disqualified in this case.

US GOVERNMENT PRINTING OFFICE 1990 — 262 20300794

wa