Amicus Curiae Brief — Adarand Constructors, Inc. v. Mineta

AUG [0 206| No. 00-730 ~~

In the Supreme Court of the United States? 200°

ADARAND CONSTRUCTORS, RE “CERVED |

—_ - ——— -

Petitioner, 4); AUG 14 2001

LDC

NORMAN Y. MINETA, Secretary of the United

States Department of Transportation et al.,

Respondents.

V.

On Writ of Certiorari to the United States

Court of Appeals for the Tenth Circuit

Brief of Amici Curiae Office of Communication of the

United Church of Christ, Minority Media and

Telecommunications Council, Alliance for Community

Media, American Federation of Television and Radio

Artists, American Hispanic Owned Radio Association,

Black College Communication Association, Civil

Rights Forum on Telecommunications Policy, Media

Action Network of Asian Americans, National Asian

American Telecommunications Association, National

Association of Black Journalists, National Association

of Black Owned Broadcasters, National Association of

Black Telecommunications Professionals, National

Association of Hispanic Journalists, National

Association of Minorities in Communications, National

Association of Minority Media Executives, National

Hispanic Media Coalition, Telecommunications

Research and Action Council, and Women's Institute

for Freedom of the Press, In Support of Respondents

Shelby D. Green David Honig *

c/o Pace Law School Minority Media and

78 No. Broadway Telecommunications Council

White Plains, N.Y. 10603 3636 16th St. NW #BG-54

(914) 422-4421 Washington, D.C. 20010

(202) 332-7005

* Counsel of Record

Attorneys for Amici Cur.ae

IBEST AVAILABLE COPY

TABLE OF CONTENTS

Table of Authorities rT

Interest of Amici Curiae 1

Summary of Argument 7

Argument 8

Programs Using The Basic Design 8

Of DOT's Current DBE Program

Can Satisfy Strict Scrutiny

A. The Court Of Appeals Wisely 8

Afforded Considerable Deference

To Congressional Findings And

Legislative History

B. The Court Of Appeals Correctly 14

Found That DOT's Current DBE

Served The Compelling

Interests Of Not Perpetuating,

And Of Remedying, The

Consequences Of Racial

Discrimination In The

Government's Own Distribution

Of Federal Funds

C. The Court Of Appeals Correctly 18

Found That Discrimination In

Contracting Is National In Scope

Conclusion 23

TABLE OF AUTHORITIES

Cases

Adarand Constructors, Inc. v. Pefia,

515 U.S. 200 (1995)

Adarand Constructors, Inc. v. Slater,

228 F.3d 1147 (10th Cir. 2000)

Bob Jones University v. United States,

461 U.S. 574 (1983)

Brown v. Board of Education, 357.

U.S. 483 (1954)

Bush v. Gore, 531 U.S. 98 (2000)

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

488 U.S. 469 (1989)

Franks v. Bowman Transportation Co.,

424 U.S. 747 (1976)

Fullilove v. Klutznick, 448 U.S. 448

(1980)

Hirabayashi v. United States, 320

U.S. 81 (1943)

Korematsu v. United States, 323

U.S. 214 (1944)

Page

passim

passim

14

16

20

14

19

passim

13

13

Cases (continued)

Jones v. Alfred H. Mayer Co., 392

U.S. 409 (1968)

Metro Broadcasting, Inc. v. FCC,

497 U.S. 547 (1990)

Mitchell v. United States, 313 U.S. 80

(1941)

Norwood v. Harrison, 413 U.S. 455

(1973)

Office of Communication of the United

Church of Christ v. FCC, 359 F.2d

994 (D.C. Cir. 1966)

of Communication of the United

Church of Christ v. FCC, 425 F.2d

543 (D.C. Cir. 1969)

Oregon v. Mitchell, 400 U.S. 112

(1970)

Regents of the Univ. of Cal. v. Bakke,

438 U.S. 265 (1978)

South Carolina v. Katzenbach,

383 U.S. 301 (1966)

United Jewish Organizations v. Carey,

430 U.S. 144 (1977)

16

12, 18

6, 9

8, 20

19

Page

Cases (continued)

United Steelworkers of America v. 12

Weber, 443 U.S. 193 (1979)

Wygant v. Jackson Board of passim

Education, 476 U.S. 267 (1986)

Administrative Materials

Amendment of the Commission's Rules to 19

Establish New Narrowband Personal

Communications Service, 8 F.C.C.R.

7162 (1993), modified, 9 F.C.C.R. 1309

(1994), further modified, 9 F.C.C.R.

4519 (1994), rev'd in part on other

grounds sub nom. Freeman Engineering

Associates, Inc. v. FCC, 103 F.3d 169

(D.C. Cir. 1997)

Glencairn, Lid., No. 1800E1-LS 22

— Media Bureau, March 15,

1

New Financial Qualifications Standards 16

for Broadcast Assignment and

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

Policy Statement on Comparative 16

Broadcast Hearings, 1 F.C.C.2d 393

(1965)

Administrative Materials (continued)

Race and Gender Based Provisions for

Auctioning C Block Broadband

Personal Communications Service

Licenses, Sixth Report and Order,

60 Fed. Reg. 37,786 (1995)

Review of the Commission's Broadcast

Equal Employment Opportunity Rules

and Policies, 15 F.C.C.R. 2329 (2000),

reversed in part sub nom. MD/DC/DE

Broadcasters Ass'n. v. FCC, 236 F.3d 13,

rehearing and rehearing en banc denied,

No. 00-1094 (released June 19, 2001)

Review of the Commission's Regulations

Governing Television Broadcasting,

14 F.C.C.R. 12,903 (1999)

Section 257 Proceeding to Identify and

Eliminate Market Entry Barriers for

Small Businesses (Notice of Inquiry),

11 F.C.C.R. 6280 (1996)

dentifying

Entry Barriers for Entrepreneurs and

Other Small Businesses, 15 F.C.C.R.

15,376 (2000)

21

17

17

Southland Television Co., 10 Rad. Reg.

(P & F) 699, recon. denied, 20 F.C.C.

159 (1955)

Ultravision Broadcasting Company,

1 F.C.C.2d 545 (1965)

47 U.S.C. § 151 (1996)

47 U.S.C. § 257(a) (1996)

47 U.S.C. § 307(a) (1996)

16

16

10

16

Statutes and Legislative

Materials (continued)

49 U.S.C. § 3(1) (1958)

Administrative Procedure Act,

5 U.S.C. § 553 (2001)

Hearings on H.R. 8301 Before the

Committee on Interstate and Foreign

Commerce, House of Representatives,

73rd Cong. 2d Sess. 14 (1934)

(testimony of Dr. Irvin Stewart,

Department of State) (reprinted in

_ D. Paglin, ed., A Legislative

istory of the Communications Act

of 1954 360 (1989)

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

Sess. 43 (1982)

Interstate Commerce Act, Part I,

24 Stat. 380 (1887)

Self-Employed Persons Health Care

Deduction Extension Act of 1995,

Pub. L. No. 104-7, 2, 109 Stat. 93

(1995)

21

15

22

15

21

BIA Financial Network, Television Market

Report 2001 (2001)

BIA Financial Network, Radio Market

Report 2001 (2001)

A. Bush and M. Martin, The FCC's

Minority Ownership Policies From

Broadcasting to PCS, 48 Fed. Comm.

LJ. 423 (1996)

FCC Office of General Counsel, Historical

Study of Market En rn

Discranination and Ob

Broadcast and Wireless Li

1950 to Present (December, m0;

Taylor Branch, Parting the Waters:

America in the King Y. 1984-

(1988) <n aoatabaaea

Address of General Colin Powell,

Republican National Convention,

August 12, 1996

21

-1-

INTEREST OF AMICI CURIAE

Amici comprise a broad spectrum of nonprofit,

nonpartisan organizations with decades of

experience with issues falling in the intersection

between communications policy and civil rights.!

The Office of Communication of the United

Church of Christ ("OC/UCC"), founded in 1965, is an

instrumentality of the United Church of Christ, a

Protestant denomination of approximately 1.6

million members nationwide. OC/UCC was the first

program of national scope aimed at promoting racial

diversity in the mass media. Its pioneering work in

integrating southern television stations led to the

landmark ruling affirming the standing of listeners

and viewers to participate in broadcast licensing

proceedings. of Communication of the United

Church of Christ v. FCC, 359 F.2d 994 (D.C. Cir.

1966) ("UCC I"). OC/UCC has participated in

dozens of FCC proceedings over the past four

decades as an advocate for minorities and women in

the mass media and in telecommunications.

1 Pursuant to S. Ct. Rule 37.3(a), amici affirm that

consent to file this brief has been granted by all parties.

Pursuant to S. Ct. Rule 37.6, amici state that no counsel for

a party authored this brief in whole or in part and no person

or entity, other than amici, their members or their counsel

made a monetary contribution to the preparation or

submission of this brief.

-2-

The Minority Media and Telecommunications

Council ("MMTC") is an association of lawyers,

engineers and scholars who provide pro bono support

to civil rights organizations in policy and rulemaking

matters before the FCC. MMTC promotes FCC

ules and private industry initiatives aimed at

increasing opportunities for minorities to own media

and telecommunications facilities. MMTC also

operates the nation's only minority-owned media and

telecommunications brokerage.

The Alliance for Community Media represents

public, educational and governmental access

organizations and public access internet centers

throughout the country. The Alliance helps assure

broad access to electronic media through public

education, building coalitions and supporting local

organizing.

The American Federation of Television and

Radio Artists, AFL-CIO ("AFTRA"), originally

founded as the American Federation of Radio Artists

in 1937, is a national labor organization representing

over 80,000 performers and newspersons employed

in the news, entertainment, advertising and sound

recording industries. AFTRA negotiates and

administers over 300 national and local collective

bargaining agreements with producers,

broadcasters, cable programmers, recording labels,

advertising agencies and other employers of

performers and journalists nationwide.

-3-

The American Hispanic Owned Radio

Association ("AHORA") promotes business

opportunities for Hispanic American broadcasters.

AHORA seeks to increase the number of Hispanic

Americans in the broadcasting industry and protect

the interests of the Hispanic American broadcast

station owners.

The Black College Communications Association

("BCCA") is composed of 28 institutions of higher

education with broadcasting or journalism programs.

BCCA develops intercollegiate efforts to advance

black students’ entry into media professions.

The Civil Rights Forum on Telecommunications

Policy is a project of the Tides Center. The Forum is

a research and educational organizations which

analyzes communications policy with a focus on

equal rights under the law and democratic values.

The Media Action Network of Asian Americans

is dedicated to monitoring the mass media and

advocating balanced, sensitive and positive coverage

and depiction of Asian Americans.

The National Asian American

Telecommunications Association is an association of

filmmakers, educators and community leaders

engaged in and supporting the production,

presentation and distribution of Asian American

films and videos designed to educate the American

public about Asian American history and

contemporary life.

”*

The National Association of Black Journalists

("NABJ") is composed of over 3,000 black

journalists. NABJ holds conferences and organizes

mentoring and membership assistance programs

aimed at increasing minority participation in print

and electronic journalism.

The National Association of Black Owned

Broadcasters is ("NABOB") is composed of over 200

commercial radio and television stations. NABOB

counts law firms, station brokers, national rep firms,

and financial institutions as associate members.

NABOB has been instrumental in shaping national

government and industry policies to improve the

opportunities for success for African Americans and

all other minority station owners.

The National Association of Black

Telecommunications Professionals ("NABTP") is

composed of 1,200 telecommunications

professionals, small business owners and students.

NABTP’s mission is to be the premier source of

education and information about the

telecommunications industry for its members,

interfacing organizations and the public, with a

specific emphasis on the black community.

The National Association of Hispanic

Journalists includes 1,500 working journalists, other

media professionals, students and scholars. It is

dedicated to the recognition and professional

advancement of Hispanics in the news industry.

s.

The National Association of Minorities in

Communications, through its local chapters,

promotes employment, program service, goods and

services contracting, and ownership of cable

television companies by minorities.

The National Association of Minority Media

Executives ("NAMME") is an organization of media

news and business managers and executives

working in newspapers, broadcasting, magazines

and new media. NAMME encourages diversity in

the senior ranks of the media industry, as well as

better coverage of multicultural communities. It

offers executive development programs,

management training and mentoring of new and

middle managers.

The National Hispanic Media Coalition

("NHMC") is an association of two dozen constituent

organizations representing all facets of Hispanic

American business, consumer, educational and

cultural life. .NHMC strives to stimulate

employment and ownership opportunities for

Hispanics in all mass media.

The Telecommunications Research and Action

Council ("TRAC") promotes the interests of

residential telecommunications consumers. TRAC

seeks to expand telecommunications service to all

Americans, bridging the racial and economic "digital

divide" in access to telecommunications technology.

6.

The Women's Institute for Freedom of the Press

is a national network of media women seeking to

extend freedom of the press to a wide array of

individuals and organizations.

Amici concur with the amicus briefs being filed

by the Lawyers Committee for Civil Rights Under

Law et al., the Minority Business Enterprise Legal

Defense Fund, Inc. et al. and the National Asian

Pacific American Legal Consortium et al.

Federal programs designed, inter alia, to remedy

the effects of past discrimination most often arise in

three contexts: procurement (e.g., the case at bar),

education (e.g., Regents of the Univ. of Cal. v. Bakke,

438 U.S. 265 (1978) ("Bakke") and communications

(e.g., Metro Broadcasting, Inc. v. FCC, 497 U.S. 547

(1990)). Amici are focused on communications.

Each amicus has advocated congressionally

mandated FCC policies designed to remedy the

effects of past discrimination, proscribe current

discrimination, prevent future discrimination,

promote economic opportunity and competition and

expand access to a broad diversity of viewpoints.

The standards for judicial review of these

programs are potentially at issue in this case.

Consequently, amici aim to draw the Court's

attention to those aspects of this case which are

most likely to reverberate in the world of media and

telecommunications.

-7-

SUMMARY OF ARGUMENT

The Court should reaffirm that Congress’

"comprehensive remedial power" is broad enough to

include measures to eliminate barriers that excluded

minorities from government benefits. Fullilove v.

Klutznick, 448 U.S. 448, 483 (1980) ("Fullilove"). In

doing so, this Court should consider three portions of

the court of appeals' decision in Adarand

Constructors, Inc. v. Slater, 228 F.3d 1147 (10th Cir.

2000) ("Adarand VII") to be especially worthy of

affirmance.

First, the court of appeals acted wisely in

deferring to congressional fact-finding. See infra pp.

8-14.

Second, the court of appeals accurately defined

the compelling governmental interests in need of

remediation. Those interests are not perpetuating,

and remedying, the consequences of the

government's use of tax revenues to facilitate race

discrimination. See infra pp. 14-18.

Third, the court of appeals correctly recognized

that Congress is empowered to determine that

discrimination in contracting is national in scope and

requires a national remedy. See infra pp. 18-23.

-8-

ARGUMENT

Programs Using The Basic Design Of DOT's

Current DBE Program Can Satisfy Strict

Scrutiny

In its decision below, the Court of Appeals has

provided a useful and easily understandable model

for discerning whether the government's interest in

remedying discrimination in a particular industry or

institution is compelling and whether the remedy is

narrowly tailored to the injury. Three well-reasoned

portions of the court of appeals’ decision particularly

deserve affirmance.

A. The Court Of Appeals Wisely Afforded

Considerable Deference To Congressional

Findings And Legislative History

Congress has extensive remedial power to

confront society-wide inequality and discrimination.

In addressing these problems, Congress’ freedom to

choose legislative ends and means is

long-established,? and has been reaffirmed in

Fullilove. The Court in Fullilove dealt squarely with

the racial aspects of the remedial program under

consideration and the nature and quantum of

2 See, e.g., Jones v. Alfred H. Mayer Co., 392 U.S. 409, 440

(1968) (holding that "[s]urely Congress has the power under

the Thirteenth Amendment rationally to determine what are

the badges and the incidents of slavery, and the authority to

translate that determination into effective legislation"); South

Carolina v. Katzenbach, 383 U.S. 301, 324 (1966) ("[als

against the reserved powers of the states, Congress may use

any rational means to effectuate the constitutional

prohibition of racial discrimination in voting.”)

-9-

evidence needed to justify it. As the court of

appeals accurately noted, "nothing in Adarand III

[Adarand Constructors, Inc. v. Pefia, 515 U.S. 200

(1995)] undermines the conclusion of the lead

Fullilove opinion that ‘Congress had abundant

evidence from which it could cindieie that minority

businesses have been denied effective participation

in public contracting opportunities by procurement

3 In Fullilove, the Court did not use the term "strict

scrutiny”, although Chief Justice Burger, in an opinion joined

by Justices White and Powell, observed that “any preference

based on racial or ethnic criteria must necessarily receive a

most searching examination to make sure that it does not

conflict with constitutional guarantees." Id., 448 U.S. at 491.

Justice Powell wrote separately to express his view that the

plurality opinion had essentially applied “strict scrutiny” as

described in his opinion in Bakke - i.e., it had determined

that the set-aside was "a necessary means of advancing a

compelling governmental interest", and had done so correctly.

Fullilove, 448 U.S. at 496 (Powell, J., concurring).

-10-

practices that perpetuated the effects of prior

discrimination.) Adarand VII at 1175 n. 17.4

In its review of Congress’ intentions, the court of

appeals assessed the legislative history and the

evidence of record to determine whether the asserted

governmental interest was compelling. While

discarding conclusory statements of elected

officials,5 the court of appeals deemed it only fair to

4 In Fullilove, Chief Justice Burger stated that “[a]

program that employs racial or ethnic criteria, even in a

remedial context, calls for close examination; yet we are

bound te approach our task with iate deference to the

Congress, a co-equal branch charged by the Constitution with

the power to ‘provide for the general Welfare of the United

States and ‘to enforce, by appropriate legislation the equal

protection guarantees of the Fourteenth Amendment’... .”

448 U.S. at 472. Chief Justice B explained that “[iJn

dealing with this facial challenge to statute, doubts must

be resolved in support of the congressional judgment.” Id.

Recognizing that Fullilove was overruled largely because it

failed to apply strict scrutiny, the court of appeals concluded

that IIT had left in place other holdings of Fullilove,

“most notably its factual determinations regarding

congressional findings and the legislative history of the SBA

discussed in the Chief Justice's opinion and further

elaborated upon in the concurring opinion of Justice Powell.”

Adarand VII, 228 F.3d at 1162 n. 6. The evidence in

Fullilove included a long history of marked disparity in the

percentage of public contracts awarded to minority business

enterprises, much of which resulted from barriers to

competitive access which had its roots in race discrimination,

including discrimination traceable to federal, state and local

contracting. Fullilove, 448 U.S. at 478.

5 Adarand VII, 228 F.3d at 1167 ("[olf course, statements

made with regard to discrimination in the subcontracting

industry by congressional reports and by members of

are insufficient in themselves to support a finding of

compelling interest.”)

-_

tt

-11-

consider the widest range of competent evidence --

statistical and anecdotal, direct and ————

pre-enactment and post-enactment. 'ygant v.

Jackson Board of Education, 476 U.S. 267, 293

(1986) (O'Connor, J., concurring) ("Wygant")

(statistical proof supplies the court with the means

for concluding that remedial acts are appropriate. )®

Upon evaluating the evidence, the court of

appeals found extensive exclusion of minority

contractors and barriers to entry. Adarand VII,

228 F.3d at 1167-76. DOT submitted extensive

evidence of public and private discrimination in

6 When a judge considering a race-conscious remedial

admits all of the proferred evidence she fairly can

admit -- but nonetheless holds that the program fails to

satisfy strict scrutiny -- the litigants will appreciate that the

program failed because of its substantive legal shortcomings,

not because of procedural rulings. On the other hand, a

program that deserves approval under strict scrutiny should

not be undermined by a judge's needlessly crabbed

evidentiary rulings. Given the high ae SS

required under the strict scrutiny standard, there is little risk

that weak evidentiary showings could eve: lead to the routine

authorization of race-conscious programs.

-12-

government procurement and in highway

construction generally. Jd. at 1166-67.7 The court

of appeals found that this discrimination inhibited

entry by minority contractors and distorted the

market for public contracts so that the

overwhelming majority of contracts went to firms

owned by as bp men. /d. at 1170-73. Finally, the

court of appeals affirmed the trial court's conclusion

that the evidence showed "a strong link between

racial disparities in the federal government's

disbursements of public funds for construction

contracts and the channeling of those funds due to

private discrimination." Jd. at 1167-68.

The court of appeals also properly deferred to

Congress’ evaluation of potential narrowly tailored

remedies. DOT provided extensive documentation

that race-neutral remedies had proven unsuccessful.

Drawing its key inference from strong evidentiary

7 The overwhelming array of competent research by

disinterested academics contained in the record of this case

would have permitted any reviewing court to find the

asserted governmental interest to be compelling. Indeed, the

weight and sufficiency of the evidence calls to mind United

Steelworkers of America v. Weber, 443 U.S. 193, 198 n. 1

(1979), where this Court found that "judicial findings of

exclusiveness from crafts on racia! grounds are so numerous

as to make such exclusion a proper subject for judicial notice.”

See also Oregon v. Mitchell, 400 U.S. 112, 133 (1970)

("Mitchell") (unanimously upholding ban on literacy tests

where Congress had “substantial, if not overwhelming,

evidence from which Congress could have concluded that it is

a denial of equal protection to condition the political

participation of children educated in a dual school system

upon their educational achievement.”)

-13-

findings, the court of appeals found that when

race-conscious public contracting programs had

been struck down or discontinued, minority business

participation in the relevant market declined

sharply or even disappeared. Id. at 1174. The court

of appeals recognized that Congress only

implemented a race-conscious remedy because of a

fact Congress could not avoid: its “efforts dating

back at least to the enactment in 1958 of the SBA

to employ race-neutral measures” had failed to

remedy the consequences of "(t]he long history of

discrimination in, and affecting, the public

construction procurement market{.]" Jd. at 1178.

Thus, the court of appeals acted reasonably in

finding that race-neutral steps were palpably

insufficient to provide a meaningful remedy. Its

findings were firmly grounded in the historical record,

not in "paternalistic stereotyping."®

In all respects, then, the court of appeals’

deference to Congress and the manner in which the

court of appeals exercised that deference were

reasonable and consistent with precedent.

8 Fullilove, 448 U.S. at 519 (Marshall, J., concurring in

judgment) (discussing Bakke, 438 U.S. at 360-361). Amici

note that strict scrutiny is not a failsafe device for excluding

racial prejudice from government decisionmaking, as was

most painfully demonstrated in Hirabayashi v. United States,

320 U.S. 81 (1943) and Korematsu v. United States,

323 U.S. 214 (1944). In both cases, despite assurances that

strict scrutiny was being applied, the Court upheld the

government's internment of Japanese Americans solely on the

basis of their ancestry. The wisdom te be taken from

Korematsu and Hirabayashi is not that strict scrutiny review

should be even stricter, but that it should be sensitive enough

to exclude stereotyping while allowing government to achieve

its lawful objectives.

-14-

B. The Court Of Appeals Correctly Found

That DOT's Current DBE Program Served

The Compelling Interests Of Not

Perpetuating, And Of Remedying, The

Consequences Of Racial Discrimination In

The Government's Own Distribution Of

Federal Funds

In the affirmative action context, the Court has

identified three potentially compelling governmental

interests. The first two were defined in Wygant as

"remedying past or present racial discrimination by

a state actor” and "promotion of racial diversity .. .

at least in the context of higher education." Zd.,

476 U.S. at 286 (O'Connor, J., concurring). A third

rationale is government's "compelling interest in

assuring that public dollars, drawn from the tax

contributions of all citizens, do not serve to finance

the evil of private prejudice." City of Richmond v.

JA. Croson Co., 488 U.S. 469, 492 (1989).9

In Adarand VII, the court of appeals correctly

defined the applicable compelling governmental

interests as "not perpetuating the effects of racial

9 As this Court has recognized, government acts

impermissibly when it distributes public resources in a

manner that perpetuates discrimination. See Bob Jones

University v. United States, 461 U.S. 574, 595 (1983) (holding

that government should not encourage educational

institutions that practice racial discrimination ~ having all

taxpayers share in their support by way of special tax

status"); Norwood v. Harrison, 413 U.S. 455, 465 (1973)

(holding that it is “axiomatic that a state may not induce,

encourage or promote private persons to accomplish what it is

constitutionally forbidden to accomplish") (citation and

internal quotations omitted). Awarding contracts to firms

that discriminate privately is “inducing, encouraging or

ing” discrimination.”

promoting”

—

> s

=

-15-

discrimination in [the government's] own distribution

of federal funds and in remediating the effects of

past discrimination in the government contracting

markets created by [government] disbursements."

Adarand VII, 228 F.3d at 1165. The court of

appeals’ definitions of the compelling governmental

interests resonate strongly with amici, whose civil

rights work centers on the communications

industries. Like highway transportation,

communications uses public rights-of-way to foster

national social and economic interaction. Regulation

of transportation and communications each

descended from the same statutory progenitor -- the

Interstate Commerce Act, which was enacted in

1887.19 The first sentence of the legislation

authorizing the FCC provides that the agency was

created, inter alia, "so as to make available, so far

as possible, to all the people of the United States,

without discrimination on the basis of race, color,

religion, national origin, or sex, a rapid, efficient,

Nation-wide, and world-wide wire and radio

communication service” (emphasis supplied).!!

10 Hearings on H.R. 8301 Before the Committee on Interstate

and Foreign Commerce, House of Representatives, 73rd Cong.

2d Sess. 14 (1934) (testimony of Dr. Irvin Stewart,

Department of State) (reprinted in Max D. Paglin, ed., A

Legislative History of the Communications Act of 1934 360

(1989) (describing how communications and transportation

regulation each evolved from the Interstate Commerce Act).

11 47 U.S.C. § 151 (1996). Compare Interstate Commerce

Act, Part I, 24 Stat. 380 (1887), 49 U.S.C. § 3(1) (1958)

(prohibiting common carriers from giving “undue or

unreasonable preference or advance to any particular person

... in any respect whatsoever, or (subjecting) any particular

person ... to any unreasonable or undue prejudice or

disadvantage.”)

. -16-

Like DOT, the FCC contravened its mandate for

decades by providing extensive and unseemly

assistance to discriminators. Acting through its

exclusive power to issue broadcast licenses,!2 the

FCC routinely provided, renewed and authorized the

assignment and transfer of licenses to segregated

companies and institutions.!5 These licensees, in

12 47 U.S.C. § 307(a) (1996).

13. Even after Brown v. Board of Education, 357 U.S. 483

(1954), the FCC routinely granted and renewed licenses of

broadcasters that discriminated, and in doing so openly

embraced state segregation laws. See, e.g., Southland

Television Co., 10 Rad. Reg. (P & F) 699, recon. denied,

20 F.C.C. 159 (1955), in which the FCC awarded a VHF-TV

license to a segregationist so rabid that he built one-story

movie theaters to evade Louisiana's law requiring theater

owners to admit blacks to one floor of a two-story theater.

The FCC justified its action by declaring that "[a]dmission of

Negroes [only] to theatre balconies appears to be legal in

Louisiana.” Id. at 750. See also UCC I (requiring the FCC to

hold a hearing on allegations that WLBT-TV, Jackson, MS,

discriminated against blacks in programming) and Office of

Communication of the United Church of Christ v. FCC,

425 F.2d 543 (D.C. Cir. 1969) ("UCC II") (vacating

WLBT-TV's license renewal after the FCC held a sham

hearing). Segregation in broadcast education denied

minorities an opportunity to obtain broadcast experience and

a record of broadcast operation, yet the FCC still credited

these factors when awarding broadcast licenses in

comparative hearings. Policy Statement on Comparative

Broadcast Hearings, 1 F.C.C.2d 393, 396-98 (1965). Finally,

the FCC did not repeal an overbroad broadcast financial

requirement until 1981, when it recognized that the former

rule prevented minorities from securing broadcast licenses.

New Financial Qualifications Standards for Broadcast

Assignment and Transfer Applicants, 87 F.C.C.2d 200, 201

(1981) (repealing Ultravision Broadcasting Company,

1 F.C.C.2d 545, 547 (1965)).

_——- —_— oe

oe ees ee ee

-17-

turn, trained the next generations of broadcaster

owners and managers. These FCC licensing

decisions ensured that two successive generations of |

broadcast professionals, managers and owners were

almost exclusively white and male.!4 In

communications as in highway construction,

substantial remediation will be required to overcome

the natural tendency of a homogeneous group to

replicate itself in successive generations. !5

14 Eventually, the FCC acknowledged that a good case

could be made that "[a]s a result of our system of awarding

broadcast licenses in the 1940s and 1950s, no minority held

a broadcast license until 1956 or won a comparative hearing

until 1975 and . . . special incentives for minority businesses

are needed in order to compensate for a very long history of

official actions which deprived minorities of meaningful access

to the radiofrequency spectrum.” Section 257 Proceeding to

Identify and Eliminate Market Entry Barriers for Small

Businesses (Notice of Inquiry), 11 F.C.C.R. 6280, 6306 (1996).

15 An effort by the FCC to remedy and prevent

discrimination in broadcast and cable employment by

requiring broad job recruitment was recently rejected by the

D.C. Circuit, which applied strict scrutiny. Review of the

Commission's Broadcast Equal Employment Opportunity

Rules and Policies, 15 F.C.C.R. 2329 (2000), reversed in part

sub nom. MD/DC/DE Broadcasters Ass'n. v. FCC, 236 F.3d

13, rehearing and rehearing en banc denied, No. 00-1094

(released June 19, 2001). Dissenting from the denial of

rehearing en banc, Judges Tatel, Edwards and Rogers noted

that "[dJetermining whether an outreach program crosses the

line from expanding opportunities for minorities to

disadvantaging nonminorities, thus triggering strict scrutiny -

and if so er the program survives - are difficult issues

that neither we nor the Supreme Court has yet considered.”

Dissenting Opinion, Slip Op. at 5. A thorough discussion of

the FCC's EEO jurisprudence may be found in S.J. Trigg, The

Federal Communications Commission's Equal Opportunity

Employment Program and the Effect of Adarand Constructors,

Inc. v. Pefia, 4 CommLaw Conspectus 237 (1996).

-18-

Regulatory initiatives such as DOT's and the

FCC's, backed by strong records that include

legislative findings, are uniquely suited to achieve

comprehensive remedies. The Court should defer to

Congress, and administrative bodies with subject

matter expertise, when they undertake to research

and remedy the consequences of

government-sponsored and government-aided

tion.

C. The Court Of Appeals Correctly Found

That Discrimination In Contracting Is

National In Scope

When discrimination occurs nationally, its

remedy must be structured nationally. As the court

of appeals found here, "[t]he remediation of

nationwide problems .. . is particularly within the

purview of Congress, and findings of industry-wide

discrimination are precisely what is relevant to a

federal decision to undertake remedial action."

Adarand VII, 228 F.3d at 1163 n.8.

It is well established that Congress need not

measure the extent of a problem in every corner of

the nation to find that it must implement reform

nationally. See, e.g., Mitchell, 400 U.S. at 133

(upholding Congress' determination that a

nationwide ban on literacy tests was appropriate

where "Congress has recognized a national problem

for what it is -- a serious national dilemma that

Nb. es lll i, il ti, ll ln ie

a es

-19-

touches every corner of our land" (emphasis in

original)).16

Congress’ ability to address nationwide

discrimination through nationwide solutions is

essential to the effective regulation of every industry

that operates across state lines. The industries with

which amici are most concerned present a prime

example. Personal Communications Service (PCS)

telephony operates in 492 local markets.!7

16 National remediation for national discrimination has an

additional advantage: it ensures that the burden of

remediation of the conditions caused by nationwide practices

is not borne by citizens of only a few communities. As this

Court has pointed out, spreading the costs of remediation is a

primary goal of narrow tailoring. See Wygant, 476 U.S. at

281 ("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" (quoting Fullilove, 448 U.S. at 484, in turn

quoting Franks v. Bowman Transportation Co., 424 US. 747,

777 (1976)). However, a remedy should only ” impose a

diffuse burden, often heodesinn only one of several

opportunities[.]" Wygant, 476 U.S. at 283. See also United

Jewish Organizations v. Carey, 430 U.S. 144, 165 (1977)

(redistricting plan authorized no "fencing out of the white

population from participation in the political processes of the

county, and the plan did not minimize or unfairly cancel out

white voting strength.”)

17 See Amendment of the Commission's Rules to Establish

New Narrowband Personal Communications Service,

8 F.C.C.R. 7162, 7167 ¥ 28 (1993), modified, 9 F.C.C.R.

1309 (1994), further modified, 9 F.C.C.R. 4519 (1994), rev'd

in part on other grounds sub nom. Freeman Engineering

Associates, Inc. v. FCC, 103 F.3d 169 (D.C. Cir. 1997).

-20-

Television and cable television are organized into

211 different Nielsen-rated television markets.18

Radio is organized into 283 Arbitron-rated

markets.!9 A requirement that legislation be

particularized to address each parochial quirk of

discrimination in each of these markets would place

the cost of designing remediation far out of reach.

Such an interpretation would render strict scrutiny

aimed at redressing nationally-occurring

discrimination "fatal in fact"2° for every federal

program.*!

18 See Review of the Commission's Regulations Governing

Television Broadcasting, 14 F.C.C.R. 12,903, 12,926 ¥ 47

(1999). These markets are identified and ranked in BIA

Financial Network, Television Market Report 2001 4-5 (2001).

19 These markets are identified and ranked in BIA

Financial Network, Radio Market Report 2001 4-5 (2001).

20 Adarand III, 515 U.S. at 237 (quoting Fullilove, 448 U.S.

at 519 (Marshall, J., concurring in judgment)).

21 A closely analogous situation is found in the field of

voting rights. This Court recently found that citizens in

multiple jurisdictions within a state deserve roughly

equivalent treatment at the polls. Bush v. Gore, 531 U.S. 98,

Slip Op. at 6 (2000) ("{hJaving once granted the right to vote

on equal terms, the State may not, by later arbitrary and

disparate treatment, value one person's vote over that of

another.") National standards may be the only way to

address this and other problems of national scope. As this

Court has recognized in the voting rights field, "Congress had

found that case-by-case litigation was inadequate to combat

widespread and persistent discrimination in voting, because

of the inordinate amount of time and energy required to

overcome the obstructionist tactics invariably encountered in

these lawsuits." South Carolina v. Katzenbach, 383 U.S. at

328.

- ———a

-21-

Opening the door, narrowly, to national remedies

that satisfy strict scrutiny is unlikely to engender a

host of poorly designed initiatives. When drafting

any remedial regulations, federal agencies typically

spend hundreds of thousands of dollars to carefully

define the harm to be remedied or prevented, and to

structure the remedy so as to avoid over- or

under-inclusiveness or disproportionate burdens on

third parties. These expenditures are subject to

congressional oversight, and to the transparency

inherent in the administrative rulemaking process.72

In its recent efforts to remedy its previous

record of subsidizing discrimination, the FCC

provides a commendable example of responsible

remediation.2*> At every stage of its administration

22 See Administrative Procedure Act, 5 U.S.C. § 553 (2001)

(providing for publication of proposed rules, consideration of

comments, and public justification of the basis for rules upon

their adoption).

23 Immediately following Adarand III, the FCC suspended

the race- and gender-conscious provisions of its regulations

governing auctions of certain wireless facilities, in large part

to avoid delays that might have resulted from litigation. Race

and Gender Based Provisions for Auctioning C Block

Broadband Personal Communications Service Licenses, Sixth

Report and Order, 60 Fed. Reg. 37,786 (1995). Another very

successful FCC program, the tax certificate policy, initiated in

1978, provided sellers of broadcast and cable properties with

a tax deferral incentive to sell to a minority owned business.

Congress eliminated this policy in 1995. Self-Employed

Persons Health Care Deduction Extension Act of 1995, Pub.

L. No. 104-7, 2, 109 Stat. 93 (1995). A thorough discussion

of the FCC's minority ownership policies may be found in A.

Bush and M. Martin, The FCC’s Minority Ownership Policies

From Broadcasting to PCS, 48 Fed. Comm. L.J. 423 (1996).

-22-

of programs designed to foster minority ownership

and employment, the agency has acted pursuant to

congressional oversight.24 The FCC has conducted

extensive research to fashion its remedial

initiatives,25 and it has undertaken genuine efforts

to use the least burdensome, least race-conscious

and most effective approaches available.?

Moreover, the FCC has undertaken to detect fronts,

frauds and abuse.27 The methodological,

24 See, e.g., H.R. Conf. Rep. 765, 97th Cong. 2d Sess. 43

(1982) (finding the paucity of minority broadcast licensees to

be partly attributable to past discrimination). See also

47 U.S.C. § 257(a) (1996) (requiring the FCC to complete a

proceeding to eliminate "market entry barriers for

entrepreneurs and other small businesses” ia

telecommunications), pursuant to which the FCC issued its

Section 257 Report to Congress: Identifying and Eliminating

Market Entry Barriers for Entrepreneurs and Other Small

Businesses, 15 F.C.C.R. 15,376 (2000).

25 See, e.g., FCC Office of General Counsel, Historical Study

of Market Entry Barriers, Discrimination and Changes in

Broadcast and Wireless Licensing, 1950 to Present

(December, 2000).

26 See supra p. 17 n. 15 (describing recent history of the

FCC's efforts to fashion a broadcast and cable employment

recruitment program).

27 See, e.g., Glencairn, Ltd., No. 1800E1-LS, at 2 (FCC

Mass Media Bureau, March 15, 1999) (on file with counsel of

record) (opening an investigation, inter alia, into whether

provisions of an agreement under which a television licensee

was required to use the programming services of a much

larger licensee “violated the [smaller] licensee's fundamental

right and obligation to determine the type of programming to

be aired on its station.”) The Bureau was responding to

allegations that the larger television licensee improperly

exercises de facto control of the smaller licensee.

ee ee

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-23-

incremental and deliberate approach to remediation

taken by agencies such as the FCC suggests that

federal agencies will act responsibly if this Court

validates DOT's current DBE program.

For over two generations, equal access to

transportation has occupied a central place in our

nation's civil ~~ history -— 4S pee This

case ts urt with an historic opportunity

to affirm that all Americans may enjoy a reasonable

opportunity not only to ride on our highways, but to

build them.

Our Secretary of State has framed the federal

government's remedial duty as “not only to cut off

and kill discrimination, but to open every avenue of

educational and economic opportunity to those who

are still denied access because of their race, ethnic

background or gender." Address of General Colin

Powell, Republican National Convention, August 12,

1996. The task of opening "every avenue of .. .

opportunity" is not so daunting that it entirely

evades solution. By affirming the court of appeals,

this Court can enable Congress, and agencies acting

under its direction, to deliver us at last to a time and

place where none of us bears the weight of past

28 See Mitchell v. United States, 313 U.S. 80, 95 (1941)

(holding that failure te provide blacks with first-class

accommodations equal to those furnished whites violated the

Interstate Commerce Act). See also generally Taylor Branch,

Parting the Waters: America in the King Years, 1954-1963

143-205 (1988) (discussing Montgomery bus boycott and its

aftermath).

Respectfully submitted,

David Honig*

Minority ‘ie tia and

Telecom: unications Council

3636 16th St. N.W.

Suite BG-54

Washington, D.C. 20010

(202) 332-7005

Shelby D. Green

c/o Pace Law School

78 No. Broadway

White Plains, N.Y. 10603

(914) 422-4421

*Counsel of Record

Attorneys for Amici Curiae

August 10, 2001

* Amici curiae appreciate the valuable assistance of

Fatima Fofana, Nicolaine Lazarre, Esq., Erik Williams, Esq.

and Jen Smith.