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

IN THE

Supreme Court of the Gnited ‘smes~

OCTOBER TERM, 1989

ASTROLINE COMMUNICATIONS COMPANY

LIMITED PARTNERSHIP,

Petitioner,

SHURBERG BROADCASTING OF HARTFORD, INC.,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals for the

District of Columbia Circuit

BRIEF OF CONGRESSIONAL BLACK CAUCUS, THE

NATIONAL ASSOCIATION FOR THE ADVANCEMENT

OF COLORED PEOPLE, NATIONAL BLACK MEDIA

COALITION, AND THE LEAGUE OF UNITED LATIN

AMERICAN CITIZENS AS AMICUS CURIAE IN SUPPORT

OF PETITIONERS

Of Counsel:

Squire Padgett

1628 1 lth Street, N.W.

Washington, D.C. 20001

Grant David Ward

Dow, Lohnes & Albertson

1255 23rd Street, N.W.

Suite 500

Professor Robert Sedler

Wayne State University School of Law

468 W. Ferry

Detroit, MI 48202

Herbert H. Henderson

Acting General Counsel

Brian J. Caner

Assistant Ganeral Counsel

Willie Abrams

Assistant General Counsel

4805 Mt. Hope Drive

Baltimore, MD 21215

(301) 358-8900

Counsel for National Association for the Ad-

vancement of Colored People

David E. Honig*

1800 N.W. 187th Street

Miami, FL 33056

(305) 628-3600

Counsel for Congressional Black Caucus and

the National Black Media Coalition

Eduardo Pena

1101 Fourteenth Street, N.W.

Suite 610

Washington, D.C. 20005

Counsel for League of United Latin American

Citizens

*Counsel of Record

TABLE OF CONTENTS

CONGRESS MAY PRESCRIBE THE

CONSIDERATION OF RACE IN THE TRANSFER

OF BROADCAST LICENSES TO PROMOTE

DIVERSITY OF BROADCAST LICENSEES AND

TO AVOID THE PERPETUATION OF THE

EFFECTS OF PRIOR STATE-SANCTIONED

DISCRIMINATION

A. When Congress Acts to Assure Full Minority

Participation in the Mainstream of American

Economic and Political Life, this Court May

Invalidate its Action Only When it is Clear

that the Means Chosen are Unrelated to the

B. The Distress Sale Policy Furthers the

Compelling Government Objective of Diverse

Broadcast Licensees

C. The Distress Sale Policy Furthers the

Compelling Objective of Avoiding the

Perpetuation of Prior Discrimination

D. The Distress Sale Policy is Narrowly

Tailored to Achieve Its Objectives

CONCLUSION

TABLE OF AUTHORITIES

Cases Page

Associated Press v. United States,

po LU SE). a 8

Beaumont Branch of the NAACP v. FCC,

O56 F.28 SOG GAL, Gar, Bei ccrccestescenaninsscntccnnciaan 20

Bilingual Bicultural Coalition

on the Mass Media v. FCC,

SOS F.28 Ge GE, Ga Bi Pi eerersteccscssnenmme 21

Black Broadcasting Coalition

of Richmond v. FCC, 556

fe ft] a. * , 21

Brown v. Board of Education,

Ae Sf ee 19

Catoctin Broadcasting of New York, Inc.,

4 F.C.C. Red. 2553 (1989), recon. denied,

4 F.C.C. Red. 6312 (1989), appealed,

D.C. Cir. No. 89-1552 (Sept. 14, 1989)... 20

Central Florida Enterprises v. FCC,

GBD PB SEB GAL. Gab. Ti prccccsesnnsensvcssenenininnnsins 23, 25

Chapman Radio and Television Co.,

yop ih bf 21

Chapman Radio and Television Co.,

21 Rad. Reg.2d (P&F) 285

TD 21

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

aches cecacnscncensseccccseos 3, 7, 18, 24

Clear Channels, 78 F.C.C.2d 1345,

recon. denied, 83 F.C.C.2d 216 (1980),

aff'd sub nom., Loyola University v. FCC,

| od 9 D> , 25

Cooper v. Aaron, 358 U.S. 1 (1958)...............:csccccssseeeseeeeees 19

Evening Star Association,

67 F.C.C.2d 318 (1977), recon.

Gomted, GE F.CC.208 155 (1978)............ccccesscccccccccccesoeee 23

FCC v. League of Women Voters

ns cccnscscocnccesipntosonsconscoescesse 12

FCC v. National Citizens Committee for Broadcasting,

as caricccthencntnnsnnsctnsensoseveess 9

Fullilove v. Klutznick,

448 U.S. 448 (1980).............ccccccccssccossees 3, 7, 8, 19, 23, 24

Hernandez v. Texas, 347 U.S. 475 (1954) ..........ccccce cece 19

Hudson Valley Broadcasting,

Ree ES GPITS UP (BDI OG) cc cncccccccccccceecccsescoscersnceees 10

iv

Katzenbach v. Morgan, 384 U.S. 641 (1966) ...........:s:20s-+++ 7

Lamar Life Broadcasting Co., 38 F.C.C. 1143

(1965), rev'd, Office of Communication

of the United Church of Christ v. FCC,

359 F.2d 994 (D.C. Cir. 1966).........cccccccceeereeeeeeeeeeeees 21

NAACP v. FCC, 682 F.2d 993 (D.C. Cir. 1982).........-+:+++ 11

NAACP v. Federal Power Commission,

425 U.S. G62 (1976) ....cccsccrccsccsssccssscoccssesccesssessnsessoocsces 12

National Black Media Coalition v. FCC,

775 F.2d 342 (D.C.Cir. 1985)..............-cccccccseccesssees 12, 20

Office of Communication of the United

Church of Christ v. FCC,

425 F.2d 543 (D.C. Cir. 1969) ...............ccccccccceseserrecseees 21

Palmore v. Sidoti, 466 U.S. 429 (1984)..........cccccceeeeeeeeeeeeeeees 7

Patterson v. McLean Credit Union, ... U.S. at .., 105

BF9A.BB 132 (19...) ccccccccccccrccccescorccccocccoccsccccsscsrsscoroesoecoess 10

Plessy v. Ferguson, 163 U.S. 537 (1896)........:.:sssesseeseeee: 11

Red Lion Broadcasting Co. v. FCC,

395 U.S. 367 (1969)...........cscccccsrcsseccerscessssrsseesees 5, 10, 25

Runyon v. McGrary, 427 U.S. 160 (1976) .......ccecssceseeeeeeees 10

Vv

Scott v. Sandford, 60 U.S. (19 How.393 1857)

Sheet Metal Workers v. EEOC,

| Ee aS ee Cm re 19

Shurberg Broadcasting of Hartford, Inc.

v. FCC, 876 F. 2d 902 (D.C. Cir.

Southland Television Co. 10 Rad. Reg.

(P&F) 750 (1957), recon. denied,

a eee ee iiciiatnieieniitcritiiierinneseniiessibasiinaniaiae 21

Syracuse Peace Council The Television Station WTVH,

2 F.C.C Red 5043 (1987), aff'd sub nom.,

Syracuse Peace Council v. FCC, 876 F. 2d 654

(D.C. Cir. 1989), cert. denied, 110 S. Ct. 717........0..00.. 12

Ultravision Broadcasting Company,

1 F.C.C.2d 544, (1965) repealed,

New Financial Qualifications Standards

for Broadcast Assignment and Transfer

Applicants, 87 F.C.C.2d 200 (1981) ..cccccccccccseseeceseee 22

United States v. Paradise, 480 U.S. 149 (1987) 00.00.0000... 19

United States Steel Workers v. Weber,

443 U.S. 193 (1979)

University of California Regents v. Bakke,

I Pi, I iriccidancetentetsciipniaiossinssiipsmmsactaca’s: 14, 15, 19

vi

Waters Broadcasting Inc., 91 F.C.C. 2d 1260 (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)............cccccsseeseeeeseees 13

Wygant v. Jackson Board of Education,

|, EST 3, 7, 26

Rules and Statutes

| ns ace N ae eee 23

Sa it SII Wiiccacincnsiseesnciievsnnisiasibhianvansanenitinsebsiicendenettaie 10

a 8 0 a UN ane 10

Pub. L. No. 100-202, 101 Stat. 13239...............c0ccccespecssesesseses 5

Pub. L. No. 100-459, 102 Stat. 2186.00.00... eee eeseeeeeee 5

Pub. L. No. 101-10162, 103 Stat. 1020.00.00... eee eeeeeee 5

Congressional Materials

H.R. Conf. Rep. No. 765,

97th Cong., 2d. Sess. 40 (1982)......3, 4, 6, 14, 19, 20, 23

S. Rep. No. 182, 100th Cong..,

EEE en ee erate 12

Administrative Materials

Amendment of Sections 73.35, 73.240 and 73.636 of the

Commission's Rules Relating to Multiple

Ownership of Standard, FM and TV Broadcast

Stations, 22 F.C.C.2d 306 (1970)...........:cccsscsceseeeeeeees 15

Amendment of Section 73.636(a) of the Commission's rules

(multiple ownership of Television Stations), 75

F.C.C.2d 587 (1979), aff'd sub nom. NAACP of BC

Docket 80-90 to Increase the Availability of FM

Broadcasting Assignments, Second Report and Order,

101 F.C.C.2d 638, recon. denied, 59 Rad. Reg.2d

(P&F) 1221 (1985), aff'd sub nom. National Black

Media Coalition v. FCC, 882 F.2d 277 (2d

Gor Sree icicuthcinsiteiecslonsecmnseciseiiatinstibanluessatistsisatinnnivenintatcuetictsines 11

Broward County Broadcasting, 1 Rad. Reg

Be re ee entisetiniataninnintaninssciensieatinccisentnsesti 21

The Columbus Broadcasting Company, Inc.,

Fe Cre i itrittercitntininmenetensnmmnnniin 21

Deletion of AM acceptance criteria in section 73.37(e)

of the Commissions Rules, 102 F.C.C. 2d 548

(1985), recon. denied, 4 F.C.C. Red 5218 (1989)........ 11

Deregulation of Radio, 73 F.C.C.2d 457 (1979).............04. 10

Deregulation of Radio, 84 F.C.C. 2d 968 (1980)................ 11

Viii

Deregulation of Television, 98 F.C.C.2d 1076 (1984)....... 18

En Banc Programming Inquiry, 44 F.C.C. 2303 (1960) .....11

FCC, Broadcast EEO Trend Report (1981)...................006 21

FCC, Broadcast EEO Trend Report (1988)...............:00005 21

FCC, Minority Ownership Task Force, Minority

Ownership Report (1978) ..........ccccccccsesseeeseeeeeeeenees 22, 23

FCC, Public Service Responsibility of

Broadcast Licensees 15 (1946).............ccccccccssessssseeeeees 11

Nighttime Operations on Canadian, Mexican and Bohemian

Clear Channels, 3 F.C.C. Red 3597 (1988),

recon. denied, 4 F.C.C. Red 4711 (1989)............cccceeee 11

Petition for Issuance of Policy Statement or Notice of

Inquiry by the National Telecommunications and

Information Administration, 69 F.C.C.2d 1591

ETE i icisiaidsicevetidibcevansncinisstisidebiniianbdeniinitaeemnmnmnngeennmcines 25

Public Notice of Intent to Sell Broadcast Station, 43

Rad. Reg.2d (P&F) 1 (1978).........cccsceseeeeeeeeeseeeees 23, 25

Statement of Policy on Minority Ownership

of Broadcast Facilities, 68 F.C.C.2d 979

ee sccnnenctennansancialisioiihiigninaiprinbtomeacewes 2, 12, 13, 22, 23

The Congressional Research Service,

Minority Broadcast Station Ownership

and Broadcast Programming:

BD Te Oe CI eaticecececctncccecccccecccsccestccececoneeee 16

1360 Broadcasting Company,

36 F.C.C. 1478 (Rev. Bd. 1964)... cece ceeeeeeeeee 22

S Federal Register 747 (19SB) q........cccccccccccccccessecccsescesecsece 10

U.S. Commission on Civil Rights,

Window Dressing on the Set (1977)..........cc..secee00++ 20, 22

Miscellaneous

Abramson, Misrucky and Horning,

Stratification and Mobility 9 (1976)...........:cccc0scceeee00s 14

Atkin, Greenberg and McDermott,

Television and Race Socialization,

60 Journalism Quarterly 50 (1975) ...........ccccseceseeeeeeeees 14

Bickel, The Morality of Consent 133 (1975)...........cccce0e00+ 18

Collier, The Black Press in America: A Powerful Force

Denied, The American Press 14 (1945).................00000- 18

The Congressional Service, Minority Broadcast Station

Ownership and Broadcast Programming: Is there

Te i iictitclcskectisteisiisideciniciiiiilersah dante cada. 16

x

Detweiler, The Negro Press in the

I sanlenasipenememaninennnntionnte 18

Fife, Black Images in American TV: The First Two

Decades, 6 Black Scholar 7 (Nov. (974) ...........ccccceeees 14

Fife, The Impact of Minority Ownership on Broadcast

News Content: A Multi-Market Study

(1986) (available at the Department of

Telecommunication, Michigan State Univ.)

(unpublished studly)..................ccccrcssscserssssseesssesscnscsees 16

Gallop Report on Political, Social and Economic

Trends No. 185 (February 1981) ............ccccccccessseeeeeees 18

Gallop Report Nos. 256-257

(January/February, 1987) ..............ssscessceeeeecrecereeeenes 18

Glasser, Competition and Diversity Among Radio

Formats: Legal and Structural Issues,

28 Journal of Broadcasting 127 (1984) ...........ccccceeeeees 17

Honig, "Relationships among EEO, Program Service, and

Minority Ownership in Broadcast Regulation,”

printed in Proceedings of the Tenth Annual

Telecommunications Policy Research Conference

SP STIs sditicsncincnectiinnptteisenendiatinianciiitiaininiedutiiancionbanndcenssi 16

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, Univ. of Wis.

tA RCA SOR ofa Saco er 16

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

28, 1987) (available at the William Trotter

Institute, Univ. of Mass. at Boston) (unpublished

i erciithictecaictisnidsnniinibestiicihinicitinanietaininctizinsinaaens 16

Levin, Fact and Fancy in Broadcast Regulation

SUTTTITTT -sce --<chiscdiinsinsdiniganbiibetibiedncdaiasminabivstiptauinlininiibianieaniaseatetia 17

MacDonald, Blacks and White TV (1983)..............ccccceeeeeee 18

McCombs and Shaw, The Agenda-Setting

Function of Mass Media,

36 Public Opinion Quarterly 126 (1972) .0.........cccccceeee 18

Myrdal, An American Dilemma 911 (1944) ...........cccccceee0es 18

Noll, Peck and McGowan, Economic Aspects of

Television Regulation 49 (1974) .o....cccccccccccccsccceeeeeseees 17

Owen, Beebe and Manning, Television Economics

SCS NU UTED slntisinsiisavsccictncinhnienséeshcbaimeemeibiaceehdehaeipetietiicaglad 23

Owen, Economics and Freedom of Expression (1975).....17

National Advisory Commission on Civil Disorders,

a I a ccisnniseshiatbadiieibietahash 17, 20

Roberts, The Portrayal of Blacks on Network Television,

15 Journal of Broadcasting, 45 (1970) .................cceeeee 14

Roberts, The Presentation of Blacks in Television

Network NewsCasts, 15 Journal of Broadcasting

Se chicotesiceinaniiincisaininteinninpip idl aisiditiananennere 14

Rubin, Small Voices and Great Trumpets (1983) ............... 18

Scherer, Stereotype Change Following Negative

Exposure to Counter-Sterotyping Media Horses,

15 Journal of Broadcasting, 51 (1970)......................0. 14

Testimony of David Honig before the FCC on en banc

AM Improvement Hearing (November 16, 1989)........ 19

Testimony of John Payton before the United States

Senate Committee on Commerce, Science and

Transportation, Communications Subcommittee

A SE 20

Wolseley, The Black Press U.S.A. 17 (1971)..............000008- 18

IN THE

Supreme Court of the United States

OCTOBER TERM, 1989

No. 89-322

ASTROLINE COMMUNICATIONS COMPANY,

Petitioner,

v.

SHURBERG BROADCASTING OF HARTFORD, INC.,

Respondent.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

DISTRICT OF COLUMBIA CIRCUIT

BRIEF OF CONGRESSIONAL BLACK CAUCUS, THE

NATIONAL ASSOCIATION FOR THE ADVANCEMENT

OF COLORED PEOPLE, NATIONAL BLACK MEDIA

COALITION, AND THE LEAGUE OF UNITED LATIN

AMERICAN CITIZENS AS AMICI CURIAE IN SUPPORT

OF PETITIONERS

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 concerns of Black and minority citizens.

The vision and goals of the original thirteen 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 rights, to minority business development

and expanded educational opportunity. The CBC was also the

originator and the petitioner for the rulemaking leading to the

adoption of the distress sale policy.'

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

for combatting discrimination within the media and in maintaining

the policies aimed at remedying societal discrimination and

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 i's

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 mer %ership organization concerned

with advancing the civil rights and promoting the educational,

economic and social well being of Hispanic Americans in the

United States. LULAC has actively promoted minority

employment and minority ownership policies in the broadcast

media before the FCC and the courts.

1 Statement of Policy on Minority Ownership in Broadcasting, 68

F.C.C.2d 979, 983 (1978).

3

The District of Columbia Circuit invalidated the distress sale

policy prescribed by Congress and implemented 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.2

SUMMARY OF ARGUMENT

Congress has determined that the distress sale policy is

necessary to promote diversity of programming, an interest

which is 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. H.R. Rep. No. 765, 97 Cong., 2d

Sees. 40, 43 (1982). This Court has recognized that Congress,

unlike any other govemmental body, has the authority to act on

the basis of such findings to remedy past societal discrimination.

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

determining the constitutionality of the distress sale policy,

Congress's choices as to both means and ends are entitled to

deference.

The Court has found that policies which distinguish among

individuals on the basis of race must survive strict scrutiny in

order to be constitutional. City of Richmond v. J.A. Croson Co.,

109 S. Ct. 706, 720-723 (1989). In particular, the policy must

further a compelling governmental interest and it must be

narrowly tailored to achieve that goal. Wygant v. Jackson Board

of Education, 476 U.S. 267, 274 (1986). The distress sale policy

fulfills both requirements and is, therefore, constitutional.

2 Pursuant to Rule 36 of the Rules of this Court, the parties have

consented to the filing of this brief. The letters of consent have been filed with

the Clerk of the Court.

4

The distress sale policy first serves the compelling

governmental interest in promoting diversity among broadcast

licensees, which derives from First Amendment values.

Congress and the Federal Communications (“FCC”) have found

that the public is best served by the “widest possible

dissemination of information from diverse and antagonistic

sources." The FCC, empowered by the Communications Act of

1934 to promote the public interest, has determined that the

diversity of ownership is one means by which the listening and

viewing pmblic will be assured of receiving a broad spectrum of

perspectives. As a result, the FCC's policy to encourage

diversity is an integral part of the agency's regulatory framework.

The distr:ss sale policy is just one component of the FCC's

overall objective to diversify broadcast licensees.

The jlistress sale policy also serves the compelling

governmeital goal of avoiding the perpetuation of prior state-

sanctioned discrimination. Congress found that the paucity of

minority broadcasters was directly related to legalized

discrimination, which precluded their participation in the FCC

licensing process. H.R. Rep. 765, 97th Cong., 2d Sess. 43

(1982). By the time this Court and the Congress had dismantled

the legal barriers to minority presence in economic and political

life, the broadcast industry had matured to such an extent that

most television and radio frequencies, of which there is a limited

number, had already been allocated. Furthermore, FCC

regulations had provided broadcasters an expectancy in

obtaining renewal of their licenses. As a result, the avenues for

minority involvement in the industry were severely limited. The

distress sale policy is thus one carefully circumscribed remedy

designed to diminish the effects of a legacy of discrimination.

The distress sale policy is a narrowly tailored means to

accomplish the goals of Congress and the FCC. It is utilized

under very particular circumstances and specifically serves the

vital governmental objectives described above. The Commission

has the discretion to invoke the policy, which only occurs when a

licensee decides to sell his station at distress prices, rather than

go through a hearing. Shurberg Broadcasting of Hartford, Inc. v.

FCC, 876 F.2d 902, 950 (D.C. Cir. 1989) (Wald, C.J., dissenting).

Thus, the policy is flexible unlike a rigid quota. Because the

policy lessens the financial impediments to broadcast ownership,

it is rationally related to the governmental objectives that justify

its existence. In addition, the policy does not unduly burden

nonminorities. A distress sale does not infringe upon a

broadcaster's legitimate expectation to receive a license because

“no one has a First Amendment right to (obtain one.)” Red

Lion Broadcasting v. FCC, 396 U.S. 367, 389 (1969). In addition,

the distress sale has resulted in the transfer of only thirty-eight

Stations to minority-controlled businesses in twelve years, or

0.28% of all broadcast stations in the nation. Accordingly, the

governmental interests served by the distress:sale policy and

the limited nature in which it accomplishes those goals outweigh

the minimal harm suffered by respondent.

ARGUMENT

CONGRESS MAY PRESCRIBE THE CONSIDER-

ATION OF RACE IN THE TRANSFER OF BROAD-

CAST LICENSES TO PROMOTE DIVERSITY OF

BROADCAST LICENSEES AND TO AVOID THE

PERPETUATION OF THE EFFECTS OF PRIOR

STATE-SANCTIONED DISCRIMINATION

On three separate occasions, Congress has directed the

FCC to maintain the distress sale policy originally adopted by

the FCC in 1978.3 The continuing resolution appropriating funds

for the federal government for fiscal year 1988 provided (Pub. L.

No. 100-202, 101 Stat. 1329 (1987):

“That none of the funds appropriated by this Act shall be

used to repeal, to retroactively apply changes in, or to

continue reexamination of, the policies of the Federal

3 Pub. L. No. 100-202, 101 Stat. 1329 (1987); Pub. L. No. 100-459, 102

Stat. 2186, 2216-17 (1988); Pub. L. 101-10162, 103 Stat. 1020-1021 (1990).

6

Communications Commission with respect to

comparative licensing, distress sales and tax certificates

granted under 26 U.S.C. 1071, to expand minority and

women ownership of broadcasting licenses, including

those established in Statement of Policy on Minority

Ownership of Broadcast Facilities . . . and Mid-Florida

Television Corp., . . ., which were effective prior to

September 12, 1986, other than to close MM Docket No.

86-464 with a reinstatement of prior policy and a lifting of

suspension of any sales, licenses, applications, or

proceedings, which were suspended pending the

conclusion of the inquiry... .”

Congress reiterated this proscription for fiscal year 1989 and

1990. See Shurberg, 876 F.2d at 938 n.10 (quoting H.R. Conf.

Rep. No. 765, 97th Cong., 2d Sess. 40, 43 (1982)).4 "Whatever

its status at prior stages of this litigation, the distress sale

program is today a deliberately chosen congressional policy,

embodied in legislation passed by the House and Senate and

signed by the President." /d.

4 In 1982, Congress amended the — Act to authorize the

FCC to employ lotteries in lieu of comparative license hearings, and

specifically provided for special media ownership and minority ownership

preferences. Specifically citing the FCC's 1978 Policy Statement, in which the

FCC announced the minority distress sale policy, the Conference Committee

concluded ‘that:

“[An] important factor in diversifying the media of mass

communications is promoting ownership by racial and ethnic

minorities - groups that traditionally have been extremely

underrepresented in the ownership of telecommunications facilities

and media properties. The policy of encouraging diversity of

information sources is best served by not only awarding preferences

based on the number of properties already owned, but also by assuring

that minority and ethnic groups that have been unable to acquire any

significant degree of media ownership are provided an increased

opportunity to do so.”

H.R. Conf. Rep. No. 765, 97th Cong. 2d Sess. 43 (1982).

A. When Congress Acts to Assure Full Minority Par-

ticipation in the Mainstream of American Economic and

Political Life, this Court May Invalidate its Action Only

When it is Clear that the Means Chosen are Unrelated to

the Stated Ends

A majority of this Court has determined that "strict scrutiny"

is the appropriate standard of review whenever government

action distinguishes among people on the basis of race.5 The

racial classification "must be justified by a compelling

governmental interest," Wygant v. Jackson, 476 U.S. at 274

(quoting Palmore v. Sidoti, 466 U.S. 429, 432 (1984)), and "the

means chosen by the State to effectuate its purpose must be

‘narrowly tailored to the achievement of that goal."" /d. (quoting

Fullilove v. Klutznick, 448 U.S. at 480.)

The Court has recognized, however, that Section 5 of the

Fourteenth Amendment "is a positive grant of legislative power

authorizing Congress to exercise its discretion in determining

whether and what legislation is needed to secure the guarantees

of the Fourteenth Amendment." Fullilove, 448 U.S. at 476

(Burger, C.J.) (quoting Katzenbach v. Morgan, 384 U.S. 641, 651

(1966)); see Croson, 109 S. Ct. at 719 (O'Connor, J.). For that

reason, when Congress acts to assure full minority participation

in the mainstream of American economic and political life, it is

entitled to some deference with respect to its choices as to both

means and ends. See Fullilove, 448 U.S. at 472, 483-4; /d. at

502-3, 510 (Powell, J.); see also Croson, 109 S. Ct. at 719

(O'Connor, J.). "[I]n no organ of government, state or federal,

does there repose a more comprehensive remedial power than in

the Congress, expressly charged by the Constitution with

competence and authority to enforce the equal protection

guarantees." Fullilove, 448 U.S. at 483 (Burger, C.J.).

5 City of Richmond v. J.A. Croson Co., 109 S. Ct. 706, 720-723 (1989);

Wygant v. Jackson Board of Education, 476 U.S. 267, 273-4 (1986) (Powell, J.);

Fullilove v. Klutznick, 448 U.S. 448, 491 (1980) (Burger, C.J.).

So long as the basis for Congressional action in this area is

discernible, Congress need not compile an evidentiary record of

the sort that might be required for judicial action. Fullilove, 448

U.S. at 463-67 (Burger, C.J.); Id. 448 U.S. at 503 (Powell, J.).

Nor may this Court substitute its judgment for that of Congress

as to the adequacy of the record. The Court "is bound to

approach [its] task with appropriate deference to the Congress,

a co-equal branch charged by the Constitution with the power . .

. 'to enforce by appropriate legislation, the equal protection

guarantees of the Fourteenth Amendment.” Fullilove, 448 U.S.

at 472. Absent a substantial basis for concluding that the

legislative judgment that affirmative steps to redress prior

discrimination and assure the full participation of minorities in all

aspects of American life was pre-textual, Congress's collective

judgment should be sustained. The judgment of Congress

should be sustained even if a majority of this Court might reach a

different judgment as to the need for action on the basis of the

available evidence.

When Congress directed the FCC to maintain the distress

sale policy to assure increased diversity of expression in

broadcasting through minority ownership of broadcasting

facilities, Congress exercised both its broad power over

interstate commerce under Article I, Section 8, and its equally

broad power to advance racial equality under Section 5 of the

Fourteenth Amendment. The objective of increasing racial

diversity among broadcast licensees serves to implement both

the First Amendment value of the “widest possible

dissemination of information from diverse and antagonistic

sources,” Associated Press v. United States, 326 U.S. 1, 20

(1945), and the Fourteenth Amendment value of full participation

by racial minorities, as licensees, speakers, and

listener/viewers, in this very important aspect of American

economic and political life. Congress's judgment as to both the

need for affirmative efforts to increase minority participation in

this area and the reasonableness of the distress sale policy as

the means of achieving this important goal are amply supported

and should be sustained.

B. The Distress Sale Policy Furthers the Compelling

Government Objective of Diverse Broadcast Licensees

This Court has recognized the important First Amendment

values at the core of the FCC's policies encouraging diversity of

broadcast licensees. See, e.g., FCC v. National Citizens Comm.

for Broadcasting, 436 U.S. 775, 795 (1978): "[T}he ‘public

interest’ standard necessarily invites reference to First

Amendment principles, and, in particular, to the First

Amendment goal of achieving ‘the widest possible dissemination

of information from diverse and antagonistic sources’. . ."

(citations omitted).

Congress has both the power and responsibility to ensure

that there is diversity in broadcast programming. Precisely

because broadcast licensing involves the allocation of scarce

frequencies, the government's interest in assuring diversity is

directly related to the goals of the First Amendment:

"the Government is permitted to put restraints on

licensees in favor of others whose views should be

expressed on this unique medium. But the people as a

whole retain their interest in free speech . . . and their

collective right to have the [electronic media] function

consistent with the ends and purposes of the First

Amendment. It is the rights of the viewers and listeners,

not the right of the broadcasters, which is paramount.”

10

Red Lion Broadcasting Co. v. FCC, 396 U.S. at 390.6 Thus, the

distress sale policy is just one component of the FCC's much

broader policy encouraging diversity to promote core First

Amendment values. Moreover, the fact that the distress sale

policy is intertwined with the FCC's regulatory framework

militates against invalidating the policy. See Patterson v.

McLean Credit Union, 109 S. Ct. 2363 (1989)(upholding Runyon

v. McCrary, 427 U.S. 160 (1976)). Less than one year after the

distress sale policy was enacted, the FCC decided to dismantle

its half-century-old regime of content-based broadcast

regulation.’ In deregulating radio (and later television), the FCC

almost entirely abolished program content regulation, relying

explicitly upon distress sales and other minority policies as its

preferred means of fostering diversification of ownership and

programming.® Thereafter, the FCC continued to introduce major

© 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

limiting network ownership of radio stations. See also 47 C.F.R. § 73.3555, the

FCC's multiple ownership rule, which prohibits licensees from owning two

radio or television stations whose service areas overlap; and 47 C.F.R. §

73.658(f), prohibiting network ownership of television stations in areas “where

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

desirability . . . that competition would be substantially restrained by such

licensing.”

These rules were enacted to increase competition among licensees by

prohibiting a monopoly of ownership by any one group, and to thereby increase

the variety of programs available to the public. See Hudson Valley

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

Rule [73.658(f)] is to prevent ownership or substantial measure of control . . .

as to restrain, through limitation of competition, the receipt by the public of a

variety of . . . programs.”) The nexus between diversity of ownership and

diversity of programming has thus been an underlying assumption of the FCC

diversity policy since its inception.

7 In Deregulation of Radio, 73 F.C.C.2d 457, 482 (1979)notice of

proposed rulemaking), the FCC stated that “[e]fforts to promote minority

ownership and EEO are underway and promise to bring about a more

demographically representative radio industry.”

8 The FCC explained as follows:

ll

new deregulatory initiatives, relying fully upon the assumption

that its distress sale policy would be available to protect

minorities in the media marketplace. The D.C. Circuit has

approved this policy decision.!0

Thus, while the telecommunications revolution has

burgeoned, the FCC has relied extensively on distress sales as

a narrowly tailored means of diversifying broadcast ownership.

Accordingly, the evisceration of the minority ownership policies

will undermine the principal premise supporting the theory of

broadcast deregulation. The FCC will thus be left with two

{I}t may well be that structural regulations such as minority

ownership programs and EEO rules that specifically address the needs

of these groups is preferable to conduct regulations that are inflexible

and often unresponsive to the real wants and needs of the public.

Deregulation of Radio, 84 F.C.C.2d 968, 1036, recon. granted in part, 87

F.C.C.2d 797 (1981), aff'd in pertinent part sub nom., Office of Communication

of the United Church of Christ v. FCC, 707 F.2d 1413 (D.C. Cir. 1983). The

FCC explicitly concluded that the minority ownership policies and EEO rules,

rather than direct regulation of broadcast content, were preferable means to

achieve diversification. /d. at 977. Indeed, under radio deregulation, if one

station in a market is serving minorities, no other station in the market is

required to do so, id. at 991, which is a dramatic departure from the regulatory

structure that had been in place for at least a generation. Compare En Banc

Programming Inquiry, 44 F.C.C. 2303, 2314 (1960) and FCC, Public Service

Responsibility of Broadcast Licensees 15 (March 7, 1946)(the “Blue

Book" (each station is expected to serve minority groups).

9 See Amendment of section 73.636(a) of the Commission's Rules

(Multiple Ownership of Television Stations), 75 F.C.C.2d 587, 599

(1979)(separate statement of Chairman Ferris), aff'd sub nom., NAACP v.

FCC, 682 F.2d 993 (D.C. Cir. 1982); Implementation of BC Docket 80-90 to

Increase the Availability of FM Broadcast Assignments, Second Report and

Order, 101 F.C.C.2d 638, recon. denied, 59 Rad. Reg.2d (P&F) 1221 (1985),

d sub nom., National Black Media Coalition v. FCC, 882 F.2d 277 (2d Cir.

987); Deletion of AM Acceptance Criteria in section 73.37(e) of the

Commission's Rules, 102 F.C.C.2d 548, 558 (1985), recon. denied, 4 F.C.C.

Red 5218 (1989); Nighttime Operations on Canadian, Mexican and

Bahamian Clear Channels, 3 F.C.C. Red 3597 (1988), recon. denied, 4 F.C.C.

Red 4711 (1989).

10 NAACP v. FCC, 682 F.2d at 1004 (holding that the FCC “ha{d} not

improperly exercised its discretion by relying on [its minority ownership,

employment and programming policies] rather than the Top-Fifty Policy, to

advance minority goals.”)

12

choices: to returm to program content regulation, a direction

which it has almost completely repudiated;!! or to abstain from

practically all regulation. Indeed, as the Second Circuit has

noted, the elimination of such policies "might have an effect on

the balancing interests undertaken by the FCC." National Black

Media Coalition v. FCC, 822 F.2d 277, 284 (2d Cir. 1987).

Racial diversity in broadcasting is clearly related to

“securing the public's First Amendment interests in receiving a

balanced presentation" of views on diverse matters of public

concer. FCC v. League of Women Voters, 468 U.S. 364, 385

(1984). In particular, racial diversity among the holders of

broadcast licenses ensures that the viewpoints of racial

minorities, in addition to the perspective on information and

ideas that comes from the experience of being a minority person

in America, are conveyed to the public at large, non-minority as

well as minority.!2 Congress has acknowledged the public

benefit resulting from increased diversity among licensees:

The Congress has found . . . that promoting diversity of

ownership of broadcast properties satisfies important

public policy goals. Diversity of ownership results in

diversity of programming and improved service to

minority and women audiences.

S.Rep 182, 100th Cong., Ist. Sess. 76 (1989). As Judge Wald

observed: "The distress sale policy rests on the assumption

that viewers and listeners of every race will benefit from access

to a broader range of broadcast fare, not that consumers will

11 See Syracuse Peace Council v. Television Station WTVH, 2 F.C.C. Red

5043 (1987), affd sub nom., Syracuse Peace Council v. FCC, 867 F.2d 654

(1989), cert. denied, 110 S. Ct. 717 (1990).

12 See NAACP v. Federal Power Commission, 425 U.S. 662, 670 n.7

(1976), in which this Court upheld FCC regulations prohibiting discriminatory

employment practices, noting that the rules were “necessary to enable the FCC

to satisfy its obligations under the Communications Act of 1934, to ensure that

its licensees’ programming reflects the tastes and viewpoints of minority

groups.” The Commissioner explicitly relied upon that reasoning in adopting

the distress sale policy. Statement of Policy on Minority Ownership, 68

F C.C.2d at 980.

13

inevitably gravitate towards programming disseminated by

licensees of their own race." Shurberg, 876 F. 2d at 942 (Wald,

C.J., dissenting ).!3

In adopting the distress sale policy in 1978, the FCC

explicitly recognized the importance of minority broadcast

licensees to the values underlying the First Amendment:

"[W]e are compelled to observe that the views of racial

minorities continue to be inadequately represented in the

broadcast media. This situation is detrimental not only

to the minority audience but to all of the viewing and

listening public. Adequate representation of minority

viewpoints in programming serves not only the needs

and interests of the minority community but also

enriches the diversified programming which is a key

objective not only of the Communications Act of 1934 but

also of the First Amendment."

Statement of Policy on Minority Ownership of Broadcast

Facilities, 68 F.C.C.2d at 982.14 Congress also has recognized

the importance of increased minority broadcast licensees to core

First Amendment values:

"The underlying policy objective of these preferences is

to promote the diversification of media ownership and

consequent diversification of programming content. This

diversity principle is grounded in the First Amendment . .

. Associated Press v. United States, 326 U.S. 1, 20

(1945). Thus, in finding that the ‘public interest,

convenience and necessity’ would be served by granting

a given mass communications media license, ‘the

13 See also supra note 4.

14 See also Waters Broadcasting Co. Inc., 91 F.C.C.2d 1260, 1265 (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) (minority ownership is “likely to

serve the important function of providing a different insight to the general

public about minority problems and minority views|.]").

14

Commission simply cannot make a valid public interest

determination without considering the extent to which

the ownership of the media will be concentrated or

diversified by the grant of one or another of the

applications before it."

H.R. Rep. No. 765, 97th Cong., 2d Sess. 40 (1982).15

Diversity, as it embraces the values embodied in the First

Amendment, is the ideal in this society.!6 Cf. Univ. of Cal.

15 Indeed, because of the growing complexity of society, knowledge of

other groups is increasingly based on perceived personal characteristics.

Abramson, Misrucky and Hornung, Stratification and Mobility 9 (1976).

When personal intergroup contact is absent or limited, media portrayals of

members of other groups must instead serve the function of definition or

confirmation of perceptions of other groups. Thus, when and if it addresses

racial issues, media can be a powerful force reducing negative stereotyping.

Scherer, Stereotype Change Following Exposure to Counter-Stereotyping Media

Heroes, 15 Journal of Broadcasting 51 (1970). The power of the media to

determine how group members know members of other groups is suggested by a

classic study demonstrating that one quarter of young White viewers reported

that “most of the things I know” about Blacks come from television viewing.”

Atkin, Greenberg and McDermott, Television and Race Role Socialization, 60

Journalism Quarterly 407, 414 (1983). Unfortunately, that information has

frequently been negative, stereotypical, incomplete or inaccurate. See, e.g.,

Roberts, The Presentation of Blacks in Television Network Newscasts, 52

Journalism Quarterly 50 (1975); Fife, Black Images in American TV: The

First Two Decades, 6 Black Scholar 7 (November, 1974); Roberts, The

Portrayal of Blacks on Network Television, 15 Journal of Broadcasting 45

(1970).

16 The FCC has recognized that there can never be too much

diversification in the mass media:

[a] proper objective is the maximum diversity of ownership that

technology permits in each area. We are of the view that 60

different licensees are more desirable than 50, and even that 51 are

more desirable than 50. In a rapidly changing social climate,

communication of ideas is vital. If a city has 60 frequencies available

but they are licensed to only 50 different licensees, the number of

sources for ideas is not maximized. It might be that the 51st licensee .

. would become the communication channel for a solution to a

severe local social crisis. No one can say that present licensees are

broadcasting everything worthwhile that can be communicated.

15

Regents v. Bakke, 438 U.S. 265, 314 (1978) (Powell, J.).

Accordingly, the validity of the distress sale policies does not

depend at all on statistical or other proof that the programming

decisions of Black or other minority licensees will be controlled

In the Matter of Amendment of Sections 73.35, 73.240 and 73.636 of the

Commission's Rules Relating to Multiple Ownership of Standard, FM and TV

Broadcast Stations, 22 F.C.C.2d 306, 311 (1970).

16

by their personal tastes, rather than their markets.!7 Further, of

course, the views of minority licensees may be identical to those

of white male licensees on many issues of public policy. On other

issues, however, the experience of being a minority in America

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

licensee does have an effect upon programming. See, e.g., The Congressional

Research Service, Minority Broadcast Station Ownership and Broadcasi

Programming: Is There a Nexus? (1988). Data collected by the FCC from

nearly 9,000 of its 12,101 television and radio stations, indicated that there is a

strong correlation between minority ownership and programming targeted to

minority audiences. While only 20% of stations without any Black ownership

responded that they provide programming directed to Black audiences; 65% of

stations with Black ownership said that they did so. Only 10% of stations

without Hispanic ownership responded that they provided Hispanic

programming, while 59% of stations with Hispanic owners did so.

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 and finding

Statistically significant differences in racial identifications and positive or

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 non-minority owned stations); 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 Wisconsin, 1981 (finding that Black-owned

radio stations had statistically significantly more diverse playlists, featuring

jazz, rock, blues, gospel formats, e.g., than did white-owned, Black-oriented

stations); 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)

(finding, for example, that in Black oriented stations, 72% of management

employees at 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

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

that minority broadcasters do make special efforts to serve those members of

their own racial group.

17

may produce significantly different perspectives.!8 Diversity

assures that on those occasions when there are differences of

perspective, the voices of minorities will be heard distinctly, and

18 One aspect of this qualitative difference in perspective was noted by

the National Advisory Commission on Civil Disorders in 1968:

“The media report and write from the standpoint of a white man's

world. The ills of the ghetto, the difficulties of life there, the Negro's

burning sense of grievance, are seldom conveyed. Slights and

indignities are part of the Negro's daily life, and many of them come

from what he calls the ‘white press’ - a press that repeatedly, if

unconsciously, reflects the biases, the paternalism, the indifference of

white America. This may be understandable, but it is not excusable

in an institution that has the mission to inform the whole of our

‘National Advise ~ Commission on Civil Disorders, 1968 Report 203 (1968).

As Professor Harvey Levin explains, “ minority tastes become a public

interest to be protecied because there are so few stations catering to them, and

because there is no widely used pay mechanism to register the viewer's intensity

of desire and consumer surplus.” Levin, Fact and Fancy in Broadcast

Regulation, 47-48 (1980); see also Glasser, Competition and Diversity among

Radio Formats: Legal and Structural Issues, 28 Journal of Broadcasting, 127,

130 (1984); Owen, Economics and Freedom of Expression 114 (1975); Noll,

Peck and McGowan, Economic Aspects of Television Regulation 49 (1974).

not as edited or screened by white males,!° to the benefit of all

participants in the debate.2°

C. The Distress Sale Policy Furthers the Compelling

Objective of Avoiding the Perpetuation of Prior

Discrimination

Professor Bickel is certainly right that "[t}he lesson of the

great decisions of the Supreme Court and the lesson of

contemporary history have been the same for at least a

generation: discrimination on the basis of race is illegal,

immoral, unconstitutional, inherently wrong, and destructive of

democratic society."2! The fact remains, however, that the

distribution of radio and television broadcast licenses today is

19 This concept translates into the journalistic environment as “agenda

setting,” a role played by the mass medis and other social forces to build public

consensus on the relative priorities in importance of various public issues. See

McCombs and Shaw, The Agenda-Setting Function of Mass Media, 36 Public

Opinion Quarterly 176 (1972). The Commission has long recognized the

significance of agenda setting in the context of diversification of information.

See, e.g., Deregulation of Television, 98 F.C.C.2d 1076, 1094 n. 61 (1984) ("we

believe our action today will serve to increase the number of issues placed on

the public's agenda, thereby advancing the fundamental goal of diversity.”)

The “agenda priorities” for public issues are quite different as between

munoriues and non-minorities. See, e.g., Gallup Report on Political, Social and

Economic Trends No. 185 at 29 (February 1981) (59% of Blacks and 17% of

Whites “favor busing children to achieve a better racial balance in the

schools”); Gallup Report Nos. 256-257 (January/February, 1987) at 22 (When

asked “how well do you think Blacks are treated in this community -- the same

as Whites are, not very well or badly?”, 54% of Blacks and 27% of Whites

responded “not very well” or “badly.” )

a Communications scholars almost universally agree tha! minority

media professionals do, in fact, bring greater awareness and sensitivity to

munority issues, problems and concerns to their jobs. See, J. Fred MacDonald,

Blacks and White TV (1983); B. Rubin, Small Voices and Great Trumpets

(1983). Indeed, the Black press, which is 100% Black-owned, has always

viewed addressing Black community needs as its major function and reason for

existing. See, e.g., Wolseley, The Black Press USA. 17-21 (1971); Collier, The

Black Press in America: A Powerful Force Defined, The American Press 14

(1945); Myrdal, An American Dilemma 911 (1944); Detweiler, The Negro

Press in the United States (1922).

21 Croson, 109 S. Ct. at 735 7 7 ,

" Cr (Scalia, J.) (quo A. Bickel, The Moralit

of Consent 133 (1975)). ri itis a

19

the product of a system of state-sanctioned preferences favoring

white males.22

The evidence that state-sanctioned racial discrimination

prior to and after Brown vs. Board of Education, 347 U.S. 483

(1954) (Brown I) seriously impaired the ability of Black

Americans to participate fully in the economic and political

mainstream of American life has been chronicled in this Court's

opinions and elsewhere.”? There can be no serious dispute that

state-sanctioned racial discrimination affected the ability of

minorities to compete for broadcast licenses awarded by the

FCC both before and after Brown 1.74 Yet, the FCC policies for

awarding broadcast licenses ignored the effects of prior

discrimination on the ability of minorities to compete for licenses

until 1978. In the meantime, however, most licenses had been

awarded to white males. Thus, as of the end of June 1973,

licenses for 765 (66.6%) of the 1,149 commercial television

stations that existed in mid-1989 had already been awarded.

As for VHF stations, 521 (91.4%) of the 570 authorized today

had been licensed by the middle of 1973. Of the 10,209 AM and

FM radio stations authorized by the FCC as of the middle of

1989, 6,994 (68.5%) had been handed out by the middle of 1973,

22 For the first 150 years of this nation's history, this Court explicitly

approved discrimination against Black Americans and other minorities, and,

more important, in favor of white males. See, e.g., Plessy v. Ferguson, 163 U.S.

527 (1896); Hernandez v. Texas, 347 U.S. 475 (1954); Scott v. Sandford, 60 U.S.

(19 How.393 (1857). This Court's recognition in Brown v. Board of Education,

347 U.S. 483 (1954) (Brown J), that discrimination against Black Americans

in public education was inconsistent with the promise of equal protection did

not eliminate racial discrimination or racism, as this Court's subseqvent

decisions attest, e.g., United States v. Paradise, 480 U.S. 149 (1987); Sheet

Metal Workers v. EEOC, 478 U.S. 421 (1986); Cooper v. Aaron, 358 U.S. 1

(1958).

23 See, e.g., Fullilove 448 U.S. at 463-467 (Burger, C.J.); Bakke, 438 U.S

265, 387-96 (Marshall, J., concurring in part).

24 See H.R. Rep. No. 765, 97th Cong., 2d Sess. 43 (1982); see also

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

15 (Nov. 16, 1989) (first minority broadcast license granted in 1956; first after

a comparative hearing 1975).

20

some 4,434 (85%) of the AM stations had likewise been

awarded at that time.?°

Notwithstanding the FCC's efforts to increase the number of

minority broadcast licensees since 1978, today just over 2% of all

radio and television station licenses are held by minorities.26

Congress specifically found that "the effects of past

inequities stemming from racial and ethnic discrimination have

resulted in a severe underrepresentation of minorities in the

media of mass communications, as it has adversely affected their

Participation in other sectors of the economy... ." H.R. Rep.

765, 97th Cong., 2d Sess. 43 (1982). The FCC was at least a

“passive participant." Croson, 109 S. Ct. at 720 (O'Connor, J.).

Its failure to recognize the effects of state-sanctioned racial

discrimination in awarding broadcast licenses prior to 1978

resulted in the virtual exclusion of minority broadcast licensees.

Broadcast employment is the most direct route to ownership

of a broadcast license. Yet for years the FCC gave broadcasters

free rein to discriminate in employment, failing, until 1989, to find

a single broadcaster guilty of employment discrimination.27 The

25 Testimony of John Payton before the United States Senate Committee

on Commerce, Science and Transportation, Communications Subcommittee

21 n.31 (Sept. 15, 1989) (citations omitted).

26 Testimony of Payton, supra note 25, at 2; see H.R. Rep. No. 765, 97th

Cong. 2d Sess. 43 (1982) (as of Dec. 1981, 164 of 8,748 commercial broadcast

licenses held by minorities; 32 of 1,386 noncommercial stations licenses held by

minorities).

27 This Court has held that where judicial findings of racial

discrimination in employment are extensive, judicial notice is appropriate. See

United Steel Workers v. Weber, 443 U.S. 193, (1979). The history of minority

exclusion from broadcast employment has been thoroughly documented, such

that judicial notice in this case is warranted. See U.S. Commission on Civil

Rights, Window Dressing on the Set (1977); National Advisory Commission on

Civil Disorders, supra note 18, at 383-84 (finding that in journalism in 1968,

fewer than 1% of management employees were Black, most of whom worked

in Black-owned organizations). Nonetheless, despite hundreds of EEO

complaints, on only one occasion has the FCC found that a licensee engaged in

discrimination. Catoctin Broadcasting of New York, 4 F.C.C. Red 2553, 2558,

recon. denied, 4 F.C.C. Red 6312 (1989), appealed, D.C. Cir. No. 89-1552 (filed

September 14, 1989). The D.C. Circuit has repeatedly been critical of the

FCC's failure to enforce its EEO Rule. Beaumont Branch of the NAACP v.

FCC, 854 F.2d 501 (D.C. Cir. 1988); National Black Media Coalition v. FCC,

21

FCC awarded broadcast license renewals to applicants with

records of flagrant discrimination in programming.2® It held that

persons who conduct discriminatory business practices qualify

for licenses,29 even when those practices occurred in other

media.3° At times, it applied its licensing policies ynevenly to the

775 F.2d 342 (D.C. Cir. 1985); Bilingual Bicultural Coalition on the Mass

Media v. FCC, 595 F.2d 621 (D.C. Cir. 1978); Black Broadcasting Coalition of

Richmond v. FCC, 556 F.2d 59 (D.C. Cir. 1977). Indeed, minority

representation in professional employment in broadcasting increased only 1.1

percentage point from 1981 to 1988, from 13.9% to 15.0%. See FCC,

Broadcast EEO Trend Report (1981); FCC, Broadcast EEO Trend Report

(1988).

8 In many instances, the FCC inaction facilitated discrimination

practiced by its licensees. See, e.g. The Columbus Broadcasting Company, Inc..

40 F.C.C. 641 (1965) (licensee helped incite the riot which took place at the

University of Mississippi when James Meredith attempted to enroll, but FCC

merely admonished the station.); Broward County Broadcasting, | Rad. Reg.

2d (P&F) 294, 296 (1963) (FCC allows threat of legal action by white citizens

to prevent Florida station from addressing small portion of programming to

Black community.) Compare Lamar Life Broadcasting Co., 38 F.C.C. 1143

(1965), rev'd, Office of Communication of the United Church of Christ v. FCC,

359 F.2d 994 (D.C. Cir. 1966) and Office of Communication of the United

Church of Christ v. FCC, 425 F.2d 543 (D.C. Cir. 1969) (FCC refused to hold

hearing on Jackson, Mississippi TV licensee which operated fully segregated

program schedule. After being ordered to do so, FCC held biased, one-sided

hearing. The D.C. Circuit subsequently ordered FCC to deny the license

renewal request).

29 See Chapman Radio and Television Co., 24 F.C.C.2d 282 (1970)

(applicant, part owner of segregated cemetery, participated in decision to

maintain segregation). See also Chapman Radio and Television Co., 21 Rad.

Reg.2d (P&F) 885, 895, 897 (Examiner 1971) (subsequent decision in which

hearing examiner found that the segregation was acceptable “in the milieu of

Alabama, 1971." Examiner also condoned the applicant's effort to conceal his

involvement in the cemetery segregation, characterizing allegations against

him as “irresponsible and only half true racism charges.”)

30 Southland Television Co., 10 Rad. Reg. (P&F) 750, recon. denied, 20

F.C.C. 1959 (1955) (FCC found operator of segregas. movie theaters qualified

to hold license. Further awarded full faith and credit © Lwisiana’s segregation

laws, one year after Brown /.)

ae

22

detriment of minorities.3! Moreover, the FCC routinely provided

broadcast licenses to colleges and universities which were

totally segregated, effectively endorsing and facilitating

segregated broadcast education.32

Without affirmative efforts specifically directed toward

increasing the number of minority licensees, white males will

continue to control virtually all radio and television stations in

this country for the foreseeable future. The FCC adopted the

distress sale policy in 1978 only after it had become clear that its

general policies encouraging diversity had failed to achieve

significant minority participation. Further, the Commission found

that despite its policies promoting equal employment opportunity

and requiring licensees to ascertain community interests and

needs, “the views of racial minorities continue[d] to be

inadequately represented in the broadcast media." 68 F.C.C. 2d

at 982.33

The distress sale policy thus recognizes that past state-

sanctioned racial discrimination has all but excluded minority

broadcast licensees. Because most licenses are renewed, the

initial awards affect the distribution of licenses long into the

31 From 1965 until 1981, the FCC applied its Ultravision rule to new

applicants. In 1981 the Commission revoked the rule, which imposed stringent

financing requirements, finding that it had inhibited minorities from obtaining

licenses. See Ultravision Broadcasting Company, 1 F.C.C.2d 544 (1965),

repealed, New Financial Qualifications Standards for Broadcast Assignment

and Transfer Applicants, 87 F.C.C.2d 200, 201 (1981). In addition, the

Commission's frequency allocations have not always been free of racial taint.

See 1360 Broadcasting Co., 36 F.C.C. 1478, (dissenting Statement of Joseph

Nelson) (Rev. Bd. 1964) (criticizing majority's refusal to waive nighttime

coverage rule for AM operator wishing to bring such coverage to Baltimore

Black community when comparable requests had been routinely approved in

predominately white areas).

32 Some of the many examples include KASU-FM, Jonesboro, Arkansas,

licensed to Arkansas State University in 1957; WBKY-FM, Lexington,

Kentucky, licensed to the University of Kentucky in 1941; WUNC-FM, licensed

to the University of North Carolina in 1952; KUHF-FM, Houston, Texas,

licensed to the University of Houston in 1950; KUT-FM, licensed to the

University of Texas in 1958; WTJU-FM, licensed to the University in 1957.

3 Citing FCC Minority Ownership Task Force, Minority Ownership

Report 1978; U.S. Commission on Civil Rights, Window Dressing on the Set

(1977).

23

future.34 Only the most well-financed Americans can even

consider entering the bidding for a radio or television station in

the major markets today, and very few minorities are in a

position to do so. The Commission35 and the Congress3® have

each recognized that past discrimination has inhibited minority

entry into ownership. Such findings are entitled to considerable

34 Most of the most valuable licenses, e.g., those for VHF-TV frequencies,

have long since been parcelled out, creating enormous scarcity rents. See

Owen, Beebe and Manning, Television Economics 114 (1974). See also,

Central Florida Enterprises v. FCC, 683 F.2d 503, 506-510 (D.C. Cir. 1982)

(Licensee has an expectancy in renewal based upon past performance. Court

noted that, as of that time, no “incumbent television station licensee ha[d]

[ever] been denied renewal in a comparative hearing.”)

In addition, section 310(d) of the Communications Act, 47 U.S.C. §

310(d), prevents the Commission from considering any assignee or transferee

other than the one proposed by the seller. Moreover, the market for

broadcasting sales is highly specialized and discreet, even more so than

residential real estate since there is no “multiple list” service or industry-wide

code of nondiscrimination. The day afier it adopted the distress sale policy,

the Commission declined to make broadcast sales public to increase minority

ownership -- preferring instead to rely on policies such as the one at issue here.

Public Notice of Intent to Sell Broadcast Station, 43 Rad. Reg.2d (P&F) 1

(1978). There is only one minority broadcast station broker in the country.

Consequently, minorities frequently fail to receive notice of stations listed for

sale. «As a result, it has been difficult for minorities to make out a successful

case of race discrimination in the sale of broadcasting stations. See, e.g.,

Evening Star Ass'n., 67 F.C.C.2d 318, 325-330, recon. denied, 68 F.C.C.2d 158

(1978).

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

36 The 1982 House Conference Committee Report affirming Congress’

support for the distress sale policy stated:

[T]he effects of past inequities stemming from racial and ethnic

discrimination have resulted in a severe underrepresentation of

minorities in the media of mass communications, as it has adversely

affected their participation in other sectors of the economy as well.

H.R. Conf. Rep. No. 765, supra note 4, at 43. Significantly, Congress explicitly

relied on an FCC report, “FCC Minority Ownership Taskforce: Report on

Minority Ownership in Broadcasting” (May 17, 1978) in reaching this

conclusion. H.R. Conf. Rep. No. 765, supra note 4, at 44. This parallels

Congress’ use of a U.S. Civil Rights Commission Report as a major

underpinning in adopting the MBE program approved in Fullilove, 448 U.S. at

466-67.

24

weight. Fullilove, 448 U.S. at 472; Croson, 109 S. Ct. at 719

(O'Connor, J.). While neither the Commission nor the Congress

expressly relied on the Commission's own contributions to that

history of discrimination, they both may be presumed to have

been aware of the above-cited reported decisions of the agency

and of its institutional history.

Given the FCC's role in the history of minority exclusion

from broadcast licenses, the distress sale policy is even more

reasonable. As a means to remedy prior exclusion, Congress's

choice of distress sales should be sustained in these

circumstances. The equal protection component of the Fifth

Amendment does not require Congress or the FCC to tolerate or

maintain a system that assures the preferred place of white

males in the nation's economic or political institutions

indefinitely.

D. The Distress Sale Policy is Narrowly Tailored to

Achieve Its Objectives

The objectives of the distress sale policy cannot be achieved

through the use of race neutral criteria. It was only after the

failure of the general diversity policies that the FCC adopted the

distress sale policy in 1978. Because of the slow turnover rate

of the most lucrative broadcast properties, change in ownership

patterns is very slow. Further, the need for race conscious

policies reflects the effects of state-sanctioned discrimination.

The distress sale policy was implemented not to Satisfy a

quota, but to increase the diversity of ownership of broadcast

outlets. The policy "may be invoked at the Commission's

discretion only with respect to a small fraction of all broadcast

licenses . . . and only when the licensee chooses to sell out at a

distress price rather than go through with the hearing.” Shurberg,

876 F. 2d at 950 (Wald, C.J., dissenting). Thus, both the FCC

and the licensee exercise some control over when the policy

takes effect. In addition, the sale of a station at "distress" prices

does not infringe upon anyone's legitimate expectation of

obtaining a license. The limited number of radio and television

25

frequencies means that "no one has a First Amendment right to

a license." Red Lion Broadcasting, 395 U.S. at 389.37

Furthermore, since the policy “lessen{s] the financial obstacles

to increased minority" ownership, Shurberg, 876 F. 2d at 952,

which are the result of discrimination that had generally excluded

minority participation in the mass media, the distress sale is

rationally related to the compelling interests which justify its

existence.

Moreover, the FCC specifically rejected other, more

restrictive alternatives when it adopted distress sales. In a

ruling released the day after it adopted the distress sale policy,

the Commission decided not to foster minority ownership by

requiring 45-day advance public notice that a station is for sale.

Public Notice of Intent to Sell Broadcast Station, 43 Rad. Reg.

(P&F) 1 (1978). Soon afterward, the Commission rejected other

minority ownership proposals originated by the Department of

Commerce and advanced during the period when the

Commission was considering whether to adopt the distress sale

policy.38 In 1980, the Commission considered and rejected a more

expansive alternative to the distress sales — a direct set-aside

of frequencies for minority ownership.%9

The distress sale policy does not unduly burden non-

minorities. "The circumstances in which distress sales arise are

rare and only a small number are [sic] approved; . . . the distress

sale policy . . . resulted in the transfer of only [thirty-eight]

stations to minority-controlled businesses in [twelve] years,"

37 See, also, Central Florida Enterprises v. FCC, 683 F.2d 503, 506-510

(D.C. Cir. 1982) (Licensee has an expectancy in renewal based upon past

performance. Court noted that, as of that time, no “incumbent television

licensee ha[d] [ever] been denied renewal in a comparative challenge.”)

38 Those proposals sought to enhance minority ownership opportunities

through revisions to the Commission's comparative hearing, time brokerage.

multiple ownership and related policies. Petition for Issuance of Policy

Statement or Notice of Inquiry by the National Telecommunications and

Information Administration, 69 F.C.C.2d 1591, 1593 (1978).

39 In the Matter of Clear Channel Broadcasting, 78 F.C.C.2d 1345, recon

denied, 83 F.C.C.2d 216, 218-19 (1980), aff'd sub nom., Loyola University v.

FCC, 670 F.2d 1222 (D.C. Cir. 1982)).

26

which accounts for only 0.28% of all broadcast stations in the

nation. Shurberg, 876 F. 2d at 950.

Shurberg was denied nothing it was entitled to have. The

fact that it did not obtain the license it sought does not require

invalidation of the distress sale policy. Only if “equal protection"

requires us to maintain the status quo, and to refuse to take

even the smallest steps to redress the effects of 200 years of

discrimination in favor of white males, can the distress sale

policy be invalidated. As this Court noted in Wygant, however,

"As part of this Nation's dedication to eradicating racial

discrimination, innocent persons may be called upon to

bear some of the burden of the remedy. ‘When

effectuating a limited and properly tailored remedy to

cure the effects of prior discrimination, such a ‘sharing of

the burden’ by innocent parties is not impermissible."

Wygant, 476 U.S. at 281 (citations omitted). The distress sale

policy is limited and specifically addresses the effects of prior

discrimination that effectively precluded minority ownership. In

contrast, the burden suffered by Shurberg is minimal. Shurberg

could have obtained the license only if the FCC decided at a

comparative hearing that the license should go to Shurberg

instead of to Faith Center. Astroline and any new applicant also

could have competed for the license at that time. Thus, the

application of the distress sale policy in this case merely

removed the uncertain possibility that Shurberg might acquire a

single television channel.

ont ST ——

27

CONCLUSION

For the foregoing reasons, the judgment of the court of

appeals should be reversed.

Of Counsel:

Squire Padgett

1628 11th Street, N.W.

Washington, D.C. 20001

Grant David Ward

Dow, Lohnes & Albertson

1255 23rd Street, N.W.

Suite 500

Washington, D.C. 20037

(202) 857-2937

George W. Jones, Jr.

Verna L. Williams

Sidley & Austin

1722 Eye Street, N.W.

Washington, D.C. 20006

Professor Robert Sedler

Wayne State University

School of Law

468 W. Ferry

Detroit, MI 48202

Respectfully submitted,

Herbert Hendersou

Acting General Counsel

Brian J. Carter

Assistant General Counsel

4805 Mt. Hope Drive

Baltimore, MD 21215

(301) 358-8900

Counsel for National

Association for the

Advancement of Colored People

David E. Honig*

1800 N.W. 187th Street

Miami, FL 33056

(305) 628-3600

Counsel for Congressional

Black Caucus and the National

Black Media Coalition

Eduardo Pena

1101 Fourteenth Street, N.W.

Suite 610

Washington, D.C. 20005

(202) 371-1555

Counsel for League of

United Latin American Citizens

*Counsel of Record