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

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0689%3A17

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1990
- **Citation:** 493 U.S. 1018

## Text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0689%3A17. Public record. Not legal advice.