Shurberg Broadcasting of Hartford, Inc. v. Federal Communications Commission, Astroline Communications Co., Intervenor

WALD, Before Judge, Chief and SIL- BERMAN, Circuit Judge, and Mac- KINNON, Senior Circuit Judge. Opinion PER CURIAM. Separate Opinions filed Judge Circuit SILBERMAN and Senior Judge Circuit

MacKINNON. Dissenting Opinion filed Chief WALD. PER CURIAM: opinions by Judges Silberman and MacKinnon in some respects differ analysis. However, both conclude that the FCC’s minority distress sale program un- constitutionally deprives Alan Shurberg and Shurberg Broadcasting of equal their protection rights under the Fifth Amend- ment because the program is not narrowly tailored to remedy past discrimination toor promote programming diversity. Specifi- cally, unduly burdens Shur- berg, an innocent nonminority, and is not Shurberg’s appeal it seeks Our resolution of reasonably related to the interests delayed this been matter has for some to vindicate. case, argument time. After oral in this is remanded to the Federal The cause case, developments in a related Steele v. for further Commission Communications FCC, (D.C.Cir.1985), 770 F.2d 1192 led us opin- not inconsistent with proceedings fully supported to ask the if it still ion. constitutionality policy. of its distress sale accordingly. Judgment acknowledged The Commission that it had requested that we doubts remand fully. order for it to reconsider the matter SILBERMAN, Judge: Circuit reexamination, In the midst of how long-time resident of Shurberg, Alan a ever, Congress passed and the President area, Hartford, and Shur- Connecticut signed continuing forbidding, resolution Hartford, Broadcasting Company berg alia, expenditure for inter funds Inc., replace trying since 1982 to have been policy. reconsideration of the distress sale Center, Inc., as the licensee of Chan- Faith promptly The Commission terminated its Shurberg appeals from nel 18 in Hartford. proceedings policy, and reinstated the Opinion Memorandum and Order an FCC therefore must consider we now Shur- granting permission Faith Center to sell its berg’s challenges. properties minority-con- broadcast to Shurberg argues that: the FCC’s deci- enterprise pursuant trolled Commis- governing sion is inconsistent with the stat- policy. After Faith distress sale sion’s ute, regulations, judicial precedents, attempt at a second unsuccessful Center’s required which he asserts the Commission sale, Shurberg sought to file with distress competitive application; to consider his application that the FCC a construction proceedings marred FCC’s were ex Faith mutually was exclusive of Center’s irregularities; parte contacts and other applica- application and to have his renewal unconstitutionally policy distress sale dis- comparative hearing for with Faith tion set against him criminated on the basis race. As the FCC application. renewal Center’s procedural I discern no flaw substantive Shurberg’s request for grant could either in the action in this case that would FCC’s comparative consideration or Faith Cen- require agency’s reversal if the assign petition permission for ter’s I neverthe- policy sale were constitutional. a third distress sale broadcast license to the Commission’s de- less vote overturn buyer Astroline Communica- —intervenor concluded, cision because I have (“As- Partnership Company Limited tions below, the distress reasons set forth troline”) both, the FCC considered —but Shurberg’s policy, applied to bar together. Deciding in requests the two license, is opportunity compete for the Center, gave slight- the FCC favor of Faith unconstitutional. weight policy distress sale ly greater to its statutory policy favoring com- than to the I. Center, Inc., petition licensing. Faith A. The Com- 99 F.C.C.2d rule, quali general As a a licensee whose preference mission also held that the come hold a license policy did not fications to broadcast embodied in the distress sale assign question may not or transfer policy into violate the Constitution because resolved its that license until the FCC has remedy past discrimination was meant to hearing. This noncomparative ownership doubts in a promote diversity and to notion that “a premised at 1170-72. And the programming. Id. nothing assign or trans the bona licensee ... Commission sustained fides his status, and until he has established dismissing fer unless Astroline’s Northland Tele pur- qualifications_” Shurberg’s that Astroline’s own contention F) 1107, (P vision, Inc., Rad.Reg.2d & a sham. ported minority (1978); Radio Co. see also Id. at 1172-73. Jefferson (D.C.Cir.1964). option, F.2d cise this because once a license has exception is an designated hearing, been a revocation rule, general developed initially as a licensee not transfer the license other time-consuming hearings way avoiding through than a distress sale. North to oust expeditious Television, Inc., when action the licensee 42 Rad.Reg.2d land example, li when the was desirable—for gamble 1110. The licensee either bankrupt or disabled. censee was See prevail noncomparative he will in the hear Policy Minority on Statement Owner ing early or make an exit via a distress Facilities, ship Broadcasting 68 F.C. sale, salvage which will allow him to some 979, (1978) (“1978 Policy 983 State C.2d portion of the license’s value. The distress ment”); generally see Stereo Broadcast price, approved, to be must no FCC, 1026, ers, F.2d 1028-29 Inc. v. 652 higher seventy-five percent than of the sta (D.C.Cir.1981). one allows tion’s and license’s fair combined market designated whose license has been for revo cap value. This ensures the distress sale hearing, applica cation or whose renewal will involve a substantial loss for the licen designated hearing, tion has for been pur see—and a substantial discount for the assign FCC-approved his license to an as- Inc., Grayson Enterprises, chasers. See signee. See id. (P F) 287, Rad.Reg.2d (1980).2 & 1978, expanded applicabil- In FCC B. ity policy. of the distress sale It would “in continue to be available circumstances long This case has complicated but, obtaining,” similar to those now procedural history that reaches back to a addition, period proceedings before the on Faith Cen encourage in order to further broadcast- ter’s Hartford beyond license and forward minority purchasers, seek out ers to [the argument the time of oral here. In addi permit li- FCC licensees whose would] license, tion to the Hartford Faith Center designated have been for revoca- censes also held broadcast licenses for three Cali hearing, applica- tion whose renewal 1978, designat fornia stations. In the FCC designated hearing tions have been for ed application Faith Center’s renewal for qualification issues ... to trans- basic hearing its San Bernardino station for be assign their licenses fer or “distress allegations cause of of fraud Faith Cen price applicants signifi- sale” with a ter’s solicitation for funds over-the-air interest, minority cant assum- cooperate investiga failure to with an FCC proposed assignee ing the or transferee 1980, tion. the Administrative Law qualifications. our meets other proceeding in the San Bernardino Statement, Policy applica 68 F.C.C.2d at 983 dismissed Faith Center’s renewal (footnote omitted). A holder whose license tion because Faith Center’s refusal to might cooperate proceeding. indicated it terminate or FCC The Commis qualification decision, refuse to renew due to basic sion affirmed that as did this Inc., eligible, approv Center, issues would be with FCC court. Faith 82 F.C.C.2d 1 al, (1980), denied, to sell its assets and transfer its license reconsid. FCC 81-235 minority enterprise.1 (1981), mem., Center, qualified to a Licen Faith Inc. aff'd FCC, (1982), denied, sees have a incentive to exer substantial 679 F.2d 261 cert. qualified minority ship, enterprise qualifies "signif 1. The FCC has stated that a as one with minority icant involvement.” enterprise Id. is one that meets the Commission’s qualifications basic and in which the 2. The distress sale is not without attrac ownership interest exceeds 50% or is control tion to the station owner whose license has been designated ling. Policy Regarding See Commission the Ad station, hearing. By selling his Minority Ownership vancement in Broadcast discount, even at a 25% the owner avoids the (1982) (“1982 ing, Policy 92 F.C.C.2d hearing of a renewal and the risk of a "costs Statement"). special policy applies A to limited Comment, Minority revoked license." FCC Dis partnerships: general partner If there is a who Policy: tress Sale Public Interest v. The Public’s partner is a with a 20% interest in the Interest, (1981). Wisc.L.Rev. Hartford, 75 L.Ed.2d 435 build a television station in an application that would be mutually exclu sive with the Channel 18 applica renewal designated In December FCC rejected tion. The FCC filing application Faith Center’s renewal for its ground regulations precluded it 18 license in Hartford WHCT-TV Channel accepting applications from competition hearing. noncomparative Faith Center designated-for-hearing appli renewal application filed a but had renewal cations until the resolution of the noncom- pending it had been held deferred status parative proceedings. C.F.R. pro- Bernardino the outcome San 73.3516(e)(1987); City Angels Broad § ceedings. After the San Bernardino (D.C. casting v. 745 F.2d dismissed, ceedings reacti- were Cir.1984). proceedings the Hartford to consider vated February April and Faith left unresolved in the San Bernardi- issues Center and Interstate Media informed the proceedings. The order reacti- no FCC’s they FCC could not consummate the vating proceedings acknowl- the Hartford said, posed distress sale. Faith Center making interest in a edged Faith Center’s however, that it opportu- had “an excellent sale, distress which it could do while its nity assignment to consummate an to other designated-for-hearing application was minority parties,” requested and it another status, status. but not while deferred pursue chance to a distress sale. Letter FCC, filed the in Feb- Faith Center with (Counsel from Kenneth E. Robertson for ruary petition special a for relief re- Center) (FCC Faith to Allan Glasser Mass questing permission to make a distress sale Bureau), 29,1984. Media March Faith Cen- Corp. to Television of Hartford. application desig- ter’s renewal reverted to granted petition appli- the and the renewal status, nated-for-hearing and the ALT proposed cation on condition that the as- prehearing scheduled a conference. On signee fully qualified ... and be “found 19, 1984, April Shurberg in turn a filed contemplated assignment fact petition extraordinary requesting for relief following days consummated within permit application that the construction he Center, Inc., such Faith determination.” attempted file in had December 1983 be (1981). The 88 F.C.C.2d FCC’s designated comparative hearing stated, either condi- order further “[s]hould application. Faith Center’s renewal Then occur, proceeding will return tion not 25,1984, on June before the FCC had acted filing prior to its status of the above Shurberg’s petition, peti- Faith on Center Special Relief.” described Petition for Id. approval tioned the Commission for of a proposed Corp., sale to Television how- distress sale to Astroline. The FCC’s Gen- consummated, ever, appli- was not and the from all eral Counsel solicited comments September cation was withdrawn. On parties conflicting requests for re- spe- again petitioned Faith Center Astroline, Department lief. of Commu- relief, seeking approval for a cial distress Capital Region nications of the Conference Corp. Media The FCC sale to Interstate Churches, Mass Media and FCC’s again granted petition Faith Center’s comments in favor of the Bureau submitted opposition application time over the sale; oppo- Shurberg recorded his distress —this Shurberg again condi- and others—and urged application to the sale and his sition approval upon proposed as- tioned its comparative hearing. be set for signee’s being fully qualified found its decision The Commission announced upon being consummated within sale’s in Memoran- petitions for relief a ninety days qualification determina- Opinion released December dum and Order failed, tion. If either of these conditions Center, Inc., 99 F.C.C.2d 1984. Faith prior revert to its application was to argu- Shurberg’s 1164. It first addressed designated-for-hearing status. comparative a he was entitled to ment that ap- renewal hearing against filed an Faith Center’s Shurberg, on December September the FCC’s permit plication because application for a construction regarding proposed 1983 order the second Commission reasoned “Congress ... granted sale had Faith distress Center’s recognized the need for approved application thereby opened renewal implementation owner- filing competitive ap for the “window” ship policies set forth in the 1978 73.3516(c),(e), plications. 47 C.F.R. §§ statement.” 99 F.C.C.2d 73.3539 The Commission also re Shurberg also failed in his attack based jected Shurberg’s argument that New on qualifications Astroline’s as a bona fide Corp. v. South Media 685 F.2d 708 minority participate in a distress sale. (D.C.Cir.1982),required the Commission The Astroline partnership general had two grant request for a comparative hear partners and one partner. limited Richard ing. note, 99 F.C.C.2d at 1168-70. It did Ramirez, P. general partner whose His- however, that if Faith Center failed to ac panic surname predicate was the for Astro- complish try, the distress sale on its third participation line’s in the as a require the FCC would Faith Center to file minority enterprise, twenty-one held a per- supplemental application. renewal This ownership cent interest and seventy per- operate open would a window for all voting cent interest partnership. competitive applications, including Shub Management, Inc., WHCT gen- the second erg’s. 99 F.C.C.2d at 1170. partner, eral held a percent nine Shurberg’s argument the distress thirty percent interest and a voting inter- sale violated his right constitutional est. Astroline Co.—not to be confused protection to equal rejected by was the with the Astroline partnership the —owned Commission as “without merit.” In reach- remaining seventy percent of the company. conclusion, ing that the FCC relied both on The partnership represented Astroline findings “underrepresentation” its of mi- the general that the partners would industry norities the broadcast and its control the partnership’s affairs and would minority view that increased vote in accordance with their respective programming increase diversity. would Id. partnership interests. Shurberg attacked at 1170-71. The Commission also drew the arrangement, bona of this point- fides support from the 1982 amendments to the ing to indicating records Ramirez had con- Act in Communications which tributed percent less than one of the sta- approved had lottery system the use of a operating tion’s capital; Shurberg asserted incorporated significant preferences patently was incredible that such a small for applicants as an alternative to given contributor would be control of the comparative hearing process. the Id. at enterprise. Shurberg alleged that Ramirez report 1171-72. The conference accompa- partnership included the only as a nying those amendments contained a state- permit device the party interest, real past ment that “the effects of inequities Co., participate Astroline in the distress stemming from racial and ethnic discrimi- sale. determined, The Commission how- nation have resulted in a underrep- severe ever, the partnership Astroline satisfied the resentation minorities media of basic requirements minority control. Id. communications, mass as it adversely at 1173. participation affected their in other sectors H.R.Rep. Shurberg economy petition as filed this well.” for review.3 No. Thereafter, Cong., (1982) 97th 2d Sess. this court issued its decision Cong. Code pp. (D.C.Cir. & Admin.News Steele F.2d 1192 1985), Noting 2281. report which conference involved the FCC’s policy of also preferential referred to the FCC’s policy extending treatment to female statement, expanded which applicants in comparative hearings for FM policy, in establishing need radio majority station licenses. A of the preferential minorities, treatment of panel preferences held the invalid as ex jurisdiction pursuant (1982). court has 402(b) This to section § 402(b) Act, of the Communications 47 U.S.C. statutory authority. F.C.C.2d 979 and 69 ceeding the FCC’s F.C.C.2d as subsequently (1982) vacated amended 52 R.R.2d 1313 The court en banc [sic4] and set the case for re panel opinion Corp., Mid-Florida Television however, (1978) hearing. requested, ], The FCC F.C.C.2d 607 Rev.Bd. [sic5 prior were September remand the case without consider effective that we to allow the FCC to reconsid other than to close MM ing the merits Docket No. preferences, since in with a prior poli- er the for those reinstatement of basis race, cy lifting suspension it had “concluded that and a the meantime sales, origin licenses, applications, should not per proceed- or national se sex ings, licensing suspended pending determinations.” Ac which were a basis for remand, inquiry.... companying its motion conclusion lengthy brief on the Commission filed compliance provision, In the FCC might deny its merits—in the event we comparative ended reconsideration of its apparently reach the motion and preference policies, merits — and distress sale with- gender prefer conceding that its race and conclusions, issuing any out and announced We re ences violated Constitution. policies it would reinstate such they case, October allow manded September 12, See, prior existed the bases of its the FCC to reexamine Center, Inc., 3 e.g., Faith F.C.C.Rcd. 868 policies. gender preference developments, light of these we asked Shurberg promptly moved the court for supplemental file a brief in this the FCC to expedited resolution on the merits. Shur- position on the constitu- clarifying case berg fully noted that the case was briefed provi- tionality of the argued years ago, more than two brief, filing sion. Instead of Commis- inquiry that the termination of the Steele responded poli- that the “distress sale sion precluded any further evolution of the questions cy many raises of the same granted part, case. We the motion in case,” re- present are in the Steele agreeing to render our decision on the mer- inquiry into the quested a remand to allow its in course of the normal business. The policy along with considera- distress sale request FCC’s for a remand to allow it to comparative preference policies tion of the policy, the distress sale as well reexamine granted in We the motion raised Steele. Steele, suggested in as its brief that it in and remanded the record June essentially agree Shurberg’s now with con- arguments. stitutional December the President On continuing ap- resolution signed into law a hand, recognize the other I also On propriating govern- for the federal funds in the FCC’s brief Winter Park Communi year fiscal 1988. Pub.L. No. 100- ment for FCC, cations v. Nos. 85-1755 (1987). Among its Stat. (D.C.Cir. 21, 1988) argued support Nov. following: visions was the minority prefer of the Commission’s ive li appropriated by comparative ence as used That none of the funds censing procedures. The asserted repeal, to retro- FCC this Act shall be used in, approach constitutional because it is actively apply changes or to continue government of, policies compelling inter based on a reexamination pro est in the enhancement of Federal Commission Communications appears in licensing, gramming which respect comparative contention —a Still, grant- consistent with its brief Steele. distress sales and tax certificates Park, argued poli that its expand mi- the FCC Winter ed under 26 U.S.C. “race is cy narrowly tailored because ownership of broad- was nority and women considered licenses, including one of several factors casting those estab- in and of Minority than a decisive factor Policy rather lished in Statement Therefore, race is one Facilities, since 68 itself.” Ownership of Broadcast (Rev.Bd.1978). (P F) F.C.C.2d 607 Rad.Reg.2d 5. 69 4. 52 & among many consideration compara argues posture of Faith Center’s practice license challenged application tive renewal really Winter more akin to Park, distinguishable it is deferred from distress status than to designated-for- 913, hearing in Shurberg. See status under the rule of New infra Media, 924-25.6 South F.2d the substance and not the form of a license’s status is continuing apparently resolution controlling. mentioned, As I desig- have prevented expression the formal fur- nated-for-hearing applications protected are case, by ther views the FCC this and the competitive filings, from ap- but deferred policy, reinstated plications are applicants not. Deferred are operative is still and has an effect on Shur- required to supplemental submit renewal berg’s interests. We therefore must con- applications every during interval challenge, looking his sider the various time of their deferred status regu- when a briefs, paradoxically include both the application lar renewal would be And due. repudiation policy. FCC’s defense and of its those supplemental filings operate open competitive for applications. window II. Media, South New the FCC had Turning Shurberg’s first to nonconstitu- granted applications several renewal condi- challenge action, tional to the Commission’s upon tioned the outcome comparative of a major presented issue is the propriety proceeding renewal involving another of the Commission’sdecision Shurberg the licensee’s licenses. Later the de- FCC comparative was not hearing. entitled to a nied renewal of that other license and de- Giving appropriate deference to the FCC’s cided to hold noncomparative hearings to rules, application construction of its see determine how to treat the conditionally Obispo San Luis Mothers Peace v. for renewed waiting licenses. Instead of NRC, (D.C.Cir.) (en banc), 789 F.2d remaining expire licenses to and evalu- denied, 923, 107 cert. 93 ating each at against that time competing (1986), L.Ed.2d 302 I discern no basis for applications, the Commission to re- decided overturning the FCC’s determination on open the earlier conditional renewals ground.7 designating applications those hearing. The Communications Act of Id. at hearings 710. As the begin were to amended, provides that hearing licenses in completion after appeals of all court involv- pending status shall remain in ing license, effect final the unrenewed could disposition hearing. specific 47 U.S.C. fix no hearings. date for the This 307(c). regulations, The FCC’s more- § court overturned the FCC’s decision to hold over, provide that the applications Commission will not the in designated-for-hearing accept competitive applications status, after a cer- shielded from competition for an time, tain in order to allow the Commission longer interval period than the license it- designate applications renewal for hear- self. We found the situation analogous to ing and to hearings conduct such in an that in Associates, Broadcasting Carlisle orderly 73.3516(e) fashion. See C.F.R. (1976), 59 F.C.C.2d 885 § which the FCC (1987); City Angels Broadcasting v. ruled that when a application renewal had (D.C.Cir.1984). 745 F.2d remained in deferred status for years three view, In my properly ap- (which the Commission term), was the license the Commis- plied regulations the statute and its when it sion would entertain competing applica- accept Shurberg’s refused to competitive Media, tions. New South 685 F.2d at application hearing while a Faith Cen- on 716. Between the time the desig- FCC had qualifications pending. ter’s was Shurberg nated the hearing licenses for com- express opinion validity dissent, I no as although of the agreeing 7. The with the FCC minority preference policy comparative presents question,” that this issue a “close seems 3; practice point, concur dissent license raised in n. Winter Park. presumably otherwise dissent would not question. reach the constitutional pletion judicial appeals involving years. four Admittedly, long that is a time license, nonrenewed “all but one of the competitors precluded to be filing from thirteen license renewals run well applications, their but I [had] do not see here the beyond years, three with no renewal hear- total absence of activity administrative Commission, ing ongoing at the no evi- apparent in New South Media. The dence-taking underway, proceeding no Commission’s efforts to allow Faith Center midstream even launched.” Id. We to avail itself of an policy were not so then, form, “In said: fact if not in require unreasonable as to reversal. extended ‘conditional renewals’ in this case As Shurberg acknowledges, New South are like the renewal deferred for three recognized Media that not all limitations on years in Carlisle.” Id. policy favoring Ashbacker competi argues Shurberg that under New South impermissible, tion are especially insofar as designation hearing Media the mere of a they orderly advance the FCC’s administra preclude competing appli- not sufficient to tion of its work. See 685 F.2d at 716. If cations, actually there must an be policy constitutional, the distress sale were ongoing proceeding renewal which would it present would sufficiently weighty hampered. otherwise be Faith at- Center’s grounds exception for a limited to the Ash- sale, tempts to consummate a distress it is policy. agency’s backer Because an bal asserted, regarded cannot themselves as ancing competing policy considerations activity” justi- “administrative sufficient to is entitled to considerable deference from a fy the treatment of the Faith Commission’s court, Chevron U.S.A. Inc. v. Natural Re proceeding ongoing. Center renewal Council, sources 467 U.S. Defense disagree Shurberg’s I with view of New 843-44, 2778, 2782, 81 L.Ed.2d bearing South Media’s on this case. New (1984), obliged respect would be ongo- Media treated the absence of South implement Commission’sdecision to ing proceedings administrative as a factor policy despite attendant de militating against keeping ap- the renewal lays. Accordingly, quarrel I do not status, plications protected but did not the Commission on this basis.8 possibility rule out the that other interests might against protection warrant continued III. competitive applications. competitive That Shurberg challenges the distress sale applications might disrupt ongoing proceed- policy statutory as ultra vires on both ings larger one facet of a concern are, course, grounds. constitutional We for administration of the FCC’s mandate. normally obliged statutory consider work, For the distress sale question first —whether the exceeds FCC must have the discretion to hold a congressional authorization —and I am application designated-for-hear- renewal mindful of the maxim that we construe ing long enough permit status the licen- narrowly statutes to avoid constitutional explore possibility see to of such a sale. Benson, case, infirmities. Crowell v. In this the FCC exercised its discre- 285, 297, 52 S.Ct. 76 L.Ed. 598 application designated- tion to the in hold (1932). Still, once, operates the Commission un- for-hearing status not but three all, application statutory in der a mandate to consider times. All in the broad interest, years “public the convenience and neces- deferred status for over three 309(a) (1982). designated-for-hearing sity.” in then status for 47 U.S.C. § argument non-decisionmaking employee, reject Shurberg’s went to I also from a proceeding. proceedings fatally FCC’s were tainted ex the merits of the Center Faith parte irregularities. and other Commission has since included that memoran communications alleged proceeding. warrants a in the record of this It is None of the communications dum only reading regulations prohibit parte that the remand. FCC ex obvious from the memorandum public communications "directed to the merits or out Commission's failure to make it before 1.1202(a) meaningful Shurberg proceeding.” did not harm in § come of a 47 C.F.R. acted (1987). Only alleged respect. Labor Relations one of the communica See PATCO v. Federal 547, 1982). tions, (D.C.Cir. Authority, the Commissioners F.2d a memorandum to 685 910 disapproved pref- the use of must still be out in I not fleshed future cases.

has carrying means of as a out the erences begin by briefly reviewing the four cases. interest,” “public view of the Commission’s university struck a Bakke down admis- has, fact, in in authorized their use percent- sions that set aside a fixed licensing decisions. 1982 certain class,for age of each minority candidates. to the Communication Act of Amendments majority, only opin- In the Justice Powell’s 309(i)(3)(A). think, 1934, I 47 U.S.C. § issue, ion reached the constitutional and in therefore, FCC did not exceed its discussing possible justifications for authority adopted statutory when it program, firmly the admissions he rejected policy. the notion a racial classification could A. on mere be based a desire to assure that body the student specified per- contained issue is or not The constitutional whether centages particular of racial and ethnic policy, creating pref the distress sale a 307, groups. 438 U.S. 98 S.Ct. at 2757. minority purchasers, for violates the erence equal protection component of the Fifth rejected preference He also the use of a as Bolling Sharpe, v. Amendment. See discrimination, remedy past a because 497, 693, (1954). 74 S.Ct. 98 L.Ed. 884 U.S. university had any findings not made struggled Court with the discrimination, and indeed was not com- constitutionality government-sponsored petent findings. to make such at 307- Id. minority preferences four times in last 09, Powell’s Justice 98 S.Ct. at 2757-58. years,9 Regents University ten in however, opinion, recognize did that an aca- Bakke, 265, v. U.S. S.Ct. California demic compelling institution has a interest 2733, (1978); 57 L.Ed.2d 750 Fullilove v. promoting a diverse educational environ- Klutznick, U.S. S.Ct. ment. Id. at S.Ct. 2759-60. (1980); Wygant L.Ed.2d 902 v. Jackson Bringing together students from diverse Education, Board backgrounds ethnic and cultural allows (1986); 90 L.Ed.2d 260 and City them “to learn from their differences and —Co., Richmond J.A. Croson U.S. to stimulate one another to reexamine even —, (1989). 109 S.Ct. 102 L.Ed.2d 854 deeply their assumptions most held about produced twenty-three Those cases have themselves and their world.” Id. at 313 n. (some opinions of which do not reach the (citation omitted). 98 S.Ct. at 2760 n. 48 issue). aftermath, constitutional In their legitimate aspect Racial is a of a less than candid would be concede body, only part diverse student it is discerning applying but one constitutional difficult; principles “genuine diversity” this area is none compel- of the that is a majority of the first three cases does a ling state interest. Id. at join any opinion. the Court one Under Thus, university could used have circumstances, a these lower federal court race one factor a multi-factor admis- holding must do its level best extract simply employing sions decision. But majority that commanded each case to racial set-aside was inconsistent governing principles arrive at the and limi “genuine diversity,” attainment of an inter- States, 430 tations. See Marks v. United necessarily require est that would consider- 990, 993, 51 L.Ed.2d ation of other than factors race. See id. at Croson, majority 315-18, 98 S.Ct. at 2761-62. agree requirements Court did Fullilove is the case which the constitutionality of a state or local af constitutionality has sustained Court program. opinion action That firmative governmentally-imposed minority prefer- a guidance provides more than the earlier cases, reasoning but the contours of its ence not occasioned a court’s remedial court-ordered, remedy 9. A fifth Local 28 the Sheet Metal Workers' because it involved a case. EEOC, 421, primarily In t'l Ass'n v. 3019, 106 S.Ct. discrimination and it because dealt (1986), 92 L.Ed.2d 344 is distinct both with Title VII. 72; considered a at 484 n. action.10 Court S.Ct. at 2778 n. at id. facial challenge constitutionality of a set- 514-15, (Powell, J., at S.Ct. con- provision Congress in an Act of au- aside curring). funding public thorizing works con- In Wygant, the Court held unconstitu plurality opinion, In his struction.11 Chief layoff tional a school policy that accorded Burger Congress’ special stressed Justice preference teachers a over nonmi- authority constitutional under the Four- seniority. norities with As Justice O’Con- teenth Amendment to enact measures to nor judgment concurred the Court’s remedy past discrimination. See 448 U.S. grounds opinion narrow and no other 472-78, was at 2771-74. at S.Ct. Justice joined by justices, Powell’s concurrence also stressed that five one take Jus Congress finding past had made the separate concurrence, tice O’Connor’s Congress discrimination and had that se- parts opinion those of Justice Powell’s particular remedy. lected the id. at See concurred, represent which she also the 503-06, (Powell, J., at 100 S.Ct. 2787-89 holding of the Court. See Marks v. United concurring). The evidence before States, 430 U.S. 97 S.Ct. 993. specific practices in pub- demonstrated The Court found that the school board had process procurement lic that resulted in necessary failed to establish the factual discrimination or an exacerbation of the predicate i.e., past evidence of discrimina — past effects of discrimination. id. at tion—for remedial action. See 476 U.S. at 477-78, (plurality); 100 S.Ct. at 2774 id. at 277-78, Court, 106 S.Ct. at 1848-49. The (Powell, J., at 2789 concur- S.Ct. however, previous requirement relaxed its me, ring). key importance, it seems to Of governmental body make “find that the set- was the Court’s determination ings” of Recognizing discrimination. narrowly remedial aside was tailored to its findings might such subject government a purpose. prominently discussed Court liability, prefer Court authorized legislative history, at features id. 463-67, 2767-69, at and of predicated S.Ct. ences to be on substantial evi 486-88, implemented program, id. at 100 dence of Wygant, discrimination. 476 U.S. program S.Ct. at 2779-80. The was de- (O’Connor, 1854-56 signed by Congress prefer- to assure that J., concurring). Flatly rejected, though, as only ence would be awarded to disadvan- legitimate justification prefer for the minority enterprises: those enter- taged ences was school’s asserted need to prises that could show the face of chal- models; provide minority role such theo lenge they continuing were to suffer maintained, logical ry, the Court has “no competitive past effects discrimina- 275-76, 106 stopping point.” Id. at S.Ct. at (albeit necessarily tion discrimination not (Justice Essentially, 1848. the Court them). specifically directed The Court O’Connor) layoff provision held that emphasized like- also set-aside was narrowly was tailored to achieve ly impose only slight burden on nonmi- purpose, hiring goal remedial because the propor- norities since its reach was small provision designed protect expend- tion to the overall amount of funds as a was calculated ratio of black teachers industry ed in the construction and because students, to black rather than as a ratio of con- the effects were diffused rather than particular qualified minority centrated on individuals. See id. black teachers to teach application program, classifications have but Court-ordered remedy proven used declaratory injunctive striking been sustained when relief down See, e.g., the Sheet Fullilove, discrimination. Local 28 in toto. 448 U.S. at 480- EEOC, Metal Workers' Int'l Ass’nv. 478 U.S. 81 & n. & n. 71. The (1986); v. 1, 106 S.Ct. 92 L.Ed.2d 344 Swann Court was not asked to consider the fairness Educ., Charlotte-Mecklenburg Bd. individuals; by particular the burden borne 28 L.Ed.2d 554 "questions specific application observed that 486, 100 S.Ct. at must await future cases.” Id. at plaintiffs 11. The in Fullilove did not seek dam ages specific injuries caused or other relief for 912 circumstances, pool. they the relevant labor at limited

ers within Id. but not be 294, 106 S.Ct. at 1857. desirability per based se achiev ing proportional represen racial balance or Croson, pro the Court’s most recent tation of minorities in selected institutions. nouncement, held unconstitutional Rich recognized objective The Court has Plan, Minority mond’s Business Utilization remedying past may justi discrimination prime required contractors awarded fy preferences, minority the use of see Ful contracts to city construction subcontract lilove, 2773, at U.S. 100 S.Ct. at of the thirty percent at least dollar amount promot and at least one Justice has viewed “Minority of each contract to one or more ing diversity in Enterprises.” The an educational context as a Business Court ruled preference, compelling im that a racial at least when second state interest. See government, plemented by Bakke, 311-15, a state or local 438 U.S. at 98 S.Ct. at subject scrutiny” is to “strict review under Powell, J.). (opinion 2759-61 Croson, Equal at Protection Clause. required The nature of the evidence -, 721; at -, 109 S.Ct. at id. prior establish the existence of discrimina (Scalia, J., concurring). at 734-35 Given authority gov tion varies with the of the review, plan the Richmond this standard body imposing ernmental pref the remedial supported by was not a sufficient factual Fullilove, erence. See at 515 n. predicate City for remedial action. The (Powell, J., 100 S.Ct. at 2793 n. 14 deficient, evidence was because Council’s concurring). Congress clearly the insti generalized “a assertion that there has tution with the most latitude to make find past been discrimination in an entire indus ings of discrimination authorize reme try guidance legislative for a provides no dies basis of the evidence before it. precise body scope to determine the of the Croson, at -, 719-20; See 109 S.Ct. at at -, injury remedy.” it seeks to Id. Fullilove, 448 U.S. at 100 S.Ct. at particular, 723-24. S.Ct. at Court 2771, 2777; 499-502, id. at 100 S.Ct. at “benign” ruled that mere assertions of a (Powell, J., concurring).12 2785-87 A state purpose for the racial classification were government stronger or local must have weight,” id., “entitled to little or no evidence of discrimination before it can em comparison between number of classifications, Croson, at -, ploy racial prime minority contracts awarded firms 109 S.Ct. at and that evidence must (as minority population city and the “approach[ prima facie case of a consti ] opposed qualified to the number of minori statutory tutional or violation.” Id. at firms) at -, ty inappropriate. Id. -, 109 S.Ct. at 723-24. plan S.Ct. at 725-26. The Richmond also tailoring failed the test of narrow because Assuming predicate the factual for reme- there had been no “consideration of the use by any governmental body dial action of race-neutral means increase established, reviewing been court must participation city contracting,” business still narrowly ensure that the use of race is at -, id. nor did the purpose. Croson, tailored to the remedial plan provide “inquiry for an into whether -, 728; Wygant, particular seeking MBE or not the a racial U.S. at impor- S.Ct. 1847. Most preference suffered from the effects ha[d] tant, preference plan a racial must allow discrimination_” -, past Id. at case-by-case applicants consideration of 109 S.Ct. at 729-30. to ensure that each has in fact past suffered from the general propositions may Some effects of discrimi- Croson, gleaned -, -, from these four cases. Govern- nation. mentally-imposed minority preferences 727-30; Fullilove, are S.Ct. at 448 U.S. at constitutionally permissible under certain preference 100 S.Ct. at 2779. The 12. For a discussion of Congress’ special role Constitutional Decisions: Accommodation provision under the enforcement of the Four- Mary Rights Conflict, & Wm. L.Rev. Amendment, Nathanson, Congression- teenth see al Power To Contradict Court’s also must be way structured in a mini balancing. Wygant, See 476 U.S. at 274- nonminorities, mizes the burden on so that 76, 106 S.Ct. at 1847-48 Britton v. South people innocent are not asked shoulder Bend Community Corp., School 819 F.2d an undue share of the remedying cost of 766, (7th Cir.) (en banc), cert. de Wygant, discrimination. 476 U.S. at 282- —nied, U.S. —, 288, 108 S.Ct. 98 L.Ed. 1851-52; Fullilove, 106 S.Ct. at (1987). 2d 248 goal of racial diversity 514-15, (Powell, U.S. at 100 S.Ct. at 2793 might be compelling only then when that J., concurring). When a remedy is limited greater diversity itself serves one of socie tailored, properly sharing some ty’s goals. fundamental Bakke, See burden innocent parties may third be 311-15, U.S. at 98 S.Ct. at 2759-61. unavoidable and does not render a remedial program Fullilove, unconstitutional. Even if government seeking is racial (Powell, 448 U.S. at 100 S.Ct. at 2793 diversity legitimate for a pur- educational J., concurring); Franks v. Bowman pose, a court must still ask if the form and Co., Transp. 747, 774-75, 96 S.Ct. manner of the racial classification used is 47 L.Ed.2d 444 But the appropriate to achieve that purpose again,— government’s compelling need employ whether race-conscious measure is nar- remedy race-conscious outweigh must rowly tailored. Id. at 98 S.Ct. at 2761. unfairness to innocent nonminorities. See The constitutional test for “narrow tailor- Fullilove, 515, 100 atU.S. S.Ct. at 2793 ing” appears to slightly different when (Powell, J., concurring). government’s justification for racial Aside from remedying past discrimina preference is promotion (so of diversity tion, the only other state interest hereto recognized far only in an setting) academic fore in a Supreme identified opinion Court rather than remedy past discrimina- upheld sufficiently as compelling to tion. rejected Court has the use of support policies race-conscious pro is the minority set-asides as a promot- means of diversity motion of in a school’s student ing diversity. 315-18, See id. at Bakke, body. 311-12, (or 2761-62. racial) Because ethnic origin (opinion Powell, J.). at 2759 Bakke, In just many is one of factors that combine to Justice emphasized Powell special role “genuine create diversity” in an education- and characteristics higher of institutions of environment, al the state’s interest is bet- learning and the First protec Amendment promoted ancestry ter when is one element tions them. afforded Id. at aof multi-factor evaluation that takes into S.Ct. at 2759-60 Pursuit diversity, view, variety consideration a his is a compelling characteristics basis for affirma tive discrimination and attributes. According circumstances Id. settings, (Justice such those Powell), found acade Court require- the crucial mia, countervailing where “a constitutional ment for a pref- that uses a racial interest, that of Amendment,” the First legitimate erence enhance diversity is the selection paramount of students “is of applicant that each must receive individual- importance in the fulfillment of institu [the Bakke, ized consideration. 438 U.S. at 318 mission.” Id. at tion’s] S.Ct. at n.& at 2762 n. 52. 2760. Seeking racial or diversity ethnic appears The FCC to justify policy its governmental its own sake govern in a as a means to foster program- both diverse ment-regulated institution has been sound ming remedy past and as a discrimina- ly rejected. It synonymous is with the Although tion. brief em- Commission’s illegitimate objective of racial balance or phasizes that the distress proportional representation thus “based authority on its principally” equivalent to “discrimination for its own mote programming, and the sake.” Id. at 98 S.Ct. at 2757. Pre suggests ferring dissent minorities in rests “ex- order to create role- models has been similarly rejected clusively rationale,” because dis- inexorably too leads explicit obliged sent feel to address the past inequities fects justification stemming as well.13

remedial from ra Opinion and Order that re- Memorandum cial and ethnic discrimination have resulted claims, Shurberg’s constitutional jected underrepresentation in a severe of minori justifica- on the remedial agency also relied communication, ties in the mass media as it tion, preferential treatment of arguing that adversely participation their affected needed to address the “un- minorities was economy in other sectors as well.” of of minorities” in the derrepresentation H.R.Conf.Rep. Cong., 97th 2d No. Center, broadcasting industries. Faith (1982) added). (emphasis Sess. 43 The re Inc., 1171. It further cited 99 F.C.C.2d at port showing cited statistics minority- that minority that un- congressional statements broadcasting owned stations accounted for past derrepresentation was the result of percent than less two of commercial broad discrimination, and racial and ethnic dis- casting stations. See id. The FCC had Congress. power remedial of cussed the findings minority made similar “under- justifi- I treat the remedial Id. 1171-72. representation” in 1978 in the course of first, cation because constitutional law is Statement, developing Policy its 1978 developed subject that than it fully more on F.C.C.2d which announced the new respect pursuit diversity. is policy’s minority preference. distress sale B. Congress Neither nor the FCC ever plu in reaffirmed the The Court Croson any minority found evidence to link “under- that, rality’s Wygant in when consid view representation” by to discrimination govern ering by actions state local particular discriminatory practic- FCC or to discrimination, ments, “[sjocietal without broadcasting Indeed, in the industry.15 es more, amorphous impos a basis for is too in FCC its brief case to Steele Croson, ing racially remedy.” classified “[tjhere the en banc court states has never at -, (quoting Wy at 723-24 finding, been a nor so far as we know even 1848). 476 U.S. at 106 S.Ct. at gant, allegation, engaged an the FCC however, dicta, three members of the prior against discrimination racial minori- that, majority read Fullilove to mean licensing process.” ties or women in its circumstances, Congress, in the ex certain brief, Even in its Winter Park which seeks powers ercise of its under section five of (albeit distinguishable) to defend a Amendment, could the Fourteenth constitu preference policy, proof the FCC offers no tionally “identify and redress the effects of particular discrimination the broad- Croson, society-wide discrimination.” industry. Congress, cast And in the 1982 -, 720. If we are to con report, suggested conference provided a suffi clude that the FCC has underrepresentation broadcasting predicate for the cient factual distress sale merely part larger phenomenon dicta, policy, we must rest on that because minority underrepresentation in certain past the indications of discrimination used professions occupations. As a remedi- by justify the FCC to are measure, then, policy al general years of the most nature. Four appears solely to be based implemented its distress sale evidence of after the FCC policy, Congress commented that “the ef societal discrimination. agree, appears by

13. The dissent albeit for differ- stations owned minorities was less than the reasons, ent that the distress sale cannot percentage population of minorities in the as a program. a remedial See dis- be sustained as whole. clear, entirely sent at however, is not 953. That at other the dissent charac- since times Minority Ownership report, 15.The Task Force as “an terizes the distress remedy effort refers, Policy to which the FCC’s1978 Statement discrimination,” past the effects of id. at suggests minority entry into the broadcast- powers and relies on "the broad remedial ing industry primarily hindered difficulties Congress.” Id. at 942. But, obtaining financing. lack minorities' money specific discriminatory By Congress is not linked to "underrepresentation,” and the percentage practices. have seem to meant that The decision in Croson does not clearly tal is, discrimination. There course, explain whether there are evidentiary possibility that minorities may “dispro requirements imposed by the Fifth Amend portionately attracted to industries other ment on before it can authorize a than [broadcasting].” Croson, at -, remedy for discrimination, societal nor does 725-26; S.Ct. at see also Johnson v. Trans exactly it define what is meant “societal portation Agency, 616, 668, discrimination.” The Court noted that 94 L.Ed.2d (1987) (Sca “Congress made findings national lia, J., dissenting) (phenomena of discrimi there has been societal discrimination in a nation and underrepresentation due to so Croson, at -, fields,” host of 109 S.Ct. cial attitudes are “certainly distinct”). If 727, at but it is not evident whether all of we were to hold that Congress may autho findings those support would race-con rize a racial set-aside based on the meager remedies, scious remedies which “age are presented here, evidence I do not see what less in their reach past, into the and time prevent would Congress from mandating less in ability their to affect the future.” proportional representation racial in all Wygant, 476 U.S. at 106 S.Ct. at 1848 publicly-controlled employment opportunit (plurality opinion). As Kennedy Justice re ies.16 marked, process by which a law that “[t]he Nevertheless, assuming arguendo that equal is an protection violation when enact the broadcasting field has plagued been by by ed a State becomes transformed to an type of “societal equal protection guarantee discrimination” when enacted which the Court referred in Croson by Congress poses proposition.” a difficult Congress that Croson, at -, power 109 at authorize (Kennedy, S.Ct. 734 redress, J., concurring). FCC’s does not conform to the stricture of the Constitution I do not read the Court’s dicta in Croson because it is not narrowly tailored to reme to mean Congress may act without dy past discrimination. That a remedial some quantum particularized of evidence preference must narrowly be im tailored of the of effects societal discrimination in plies, Ias concept, understand the three the relevant industry, regard distinct degree limitations. The of prefer general findings minority underrep- ence must be tied to the past effects of resentation in the broadcasting differ, field disadvantages discrimination, see Fulli in my view, congressional from the find love, 486-88, at 100 S.Ct. at 2779- ings the Court encountered Fullilove. 80; Croson, at -, 109 S.Ct. at 727- case, In Congress had “abundant evi 30; prior there must be consideration dence from which it could conclude that the use of means race-neutral to increase minority businesses have been denied ef Croson, at -, minority participation, see participation fective public contracting 727; Fullilove, opportunities 448 by at procurement U.S. practices 463-67, 100 2767-69; S.Ct. id. perpetuated at prior effects dis 100 Fullilove, (Powell, J., at 2792 crimination.” S.Ct. concurring); 448 U.S. at 477- 78, 100 and the burden preference S.Ct. at In imposes 2774. the case of broad casting, parties the evidence innocent third before must not be unfair. the treatment of See Wygant, 282-84, in the 476 minorities broadcast U.S. at 106 industry Fullilove, particular 1851-52; was considerably less 448 U.S. at Underrepresentation ized. alone cannot S.Ct. at 2777. The proof sufficient past the effects of socie respect. deficient each Recently, suggested analy Court County’s Dade requiring percent five sis in federally-mandated Croson relevant to participation by minority enterprises business preference policies when it vacated for in the federally-funded construction of a transit light reconsideration in system. Croson the Transportation Eleventh The Surface Assistance Circuit’s decision in H.K. Metropoli Porter Co. v. Act of percentage goals 1978 made such County, (11th tan Cir.1987). Dade 825 F.2d minority participation business an con absolute — —, See U.S. 109 S.Ct. precedent dition receipt L.Ed.2d funds. federal Porter, In upheld H.K. the court See F.2d at policy operates value, FCC’s a manner market Lee Broadcasting Corp., see relationship (1980),

that bears a fortuitous guaran- F.C.C.2d thus past disadvantage teeing effects of minority purchaser or dis- a discount of Fullilove, Congress twenty-five percent. case, crimination. incor- at least In this porated purchased a detailed administrative waiver Astroline forty-sev- WHCT at a procedure to ensure that the percent average set-aside did en appraised val- purpose. beyond Any extend its remedial ue.17 partnership limited with a mi- policy, nority general partner Under the waiver a contractor could who owns more than subcontracting twenty percent avoid with a busi- partnership share of the enterprise price. may qualify preference. ness at an “unreasonable” for this See 1982 Fullilove, Statement, Policy 92 F.C.C.2d at 855. price at 2770-71. An “unreasonable” way require FCC rules in no price competitive as “a described above lev- preference to be tied to the extent of disad els cannot be attributed to the minor- vantage suffered enter ity attempt firm’s to cover costs inflated prise. opportunity There is no here to en present disadvantage effects of or dis- participating sure that minority enterprises 471, crimination.” Id. at 100 S.Ct. at 2771. actually disadvantaged have been by past tuning pur- Without this “fine to remedial Croson, discrimination or its effects. See pose, ‘pass[ed] the statute would not have -, 730; Fullilove, at 109 S.Ct. at 448 ” Croson, -, muster.’ at 109 S.Ct. at 487-89, U.S. at 100 S.Ct. at 2779-80. The Fullilove, (quoting atU.S. apparently Commission found Astroline to 2779). S.Ct. at Under the distress sale eligible participate in the distress sale contrast, policy, by degree pref- simply Hispanic because of Ramirez’s surn disadvantage erence is not at all tied to or tell, ame.18 As far as I can there was no discrimination. procedural mechanism that would allow price by Shurberg of the distress sale is set anyone else with an economic bargaining minority purchaser between a proceeding interest prompt an nonminority competi- who is inquiry insulated from into the economic status or the presumably tion and seller any who is anxious source of disadvantage of Ramirez or salvage forebearers, some value for his license and his nor did the FCC undertake minority pur- assets. The discount to the investigation such on its own initiative. sense, degree Fullilove, chaser—in one of the 448 U.S. at 100 S.Ct. at Cf. preference likely (waiver In- be substantial. “gives scheme reasonable as —is deed, preserve in order to some deterrent application surance that pro of the MBE against violating qualification gram basic re- will accomplishing be limited to quirements, prescribes the Commission objectives contemplated by remedial Con price may gress”). that a distress sale not Croson, exceed Under Fullilove and an seventy-five percent cestry of the station’s fair alone19 cannot be determinative in yet 17. The value of the license and other necessary assets of 19.The Court has not found it specifically appropriate appraised average to address WHCT was three times at criteria for an determining membership preferred $6,520,000. in a minori purchase price, value of ever, how- ty group Indisputably, or class. millions of $3,100,000. only Americans, generally thought by their fel minorities, carry percentage lows to be minority some case-by-case 18. The need for consideration to genes. prefer blood and When the participants truly disadvantaged ensure that are economically ence for status is as valu highlighted by groups, in addition to here, able as is it not inevitable that some who blacks, who are included as "minorities” under membership can make a case for in a policy. They the distress sale those of include group despite will assert such claims relative Surnamed, Eskimo, Aleut, Hispanic American (In India, good affluence or fortune? false American Indian and Asiatic American extrac status, give claims of "untouchable” which can Statement, Policy tion. 1978 68 F.C.C.2d at 980 jobs university places, appar access to ently are scope n. 8. It should be obvious that the Greenawalt, problem. a serious See Judi problem groups "vary for each of these will Scrutiny "Benign" cial Racial Preference Croson, Admissions, from market area to market area.” See Law School 75 Colum.L.Rev. at -, (1975)). simply 109 S.Ct. at 719. 572 n. 84 It cannot be that deciding minority pref who is entitled to a tion in the case of a remedial prefer erence. There must be some opportunity appears ence directly be how and harsh to exclude those individuals whom af ly disadvantage falls on a nonminority. merely action is firmative another business Wygant, See 282-83, 476 U.S. at reason, view, opportunity. For that in my (opinion at Powell, J.); Fullilove, sufficiently target FCC failed 448 U.S. at 100 S.Ct. at 2777. preference actually to those entitled to Fullilove, instance, the Court found the remedy. “actual ‘burden’ shouldered nonminority relatively Id.; firms is light.” see also id. Fullilove, plan Unlike the it does not (Marshall, J., S.Ct. at 2797 appear or the chose concurring). This pub was so because the adoption preference of a racial only after lic funds at construction issue constituted rejection consideration and of race-neutral only two and percent one-half of all funds minority ownership means to increase spent on contracting year each in the Unit Croson, -, broadcast stations. ed States. percent The ten set-aside re 719; Fullilove, 448 U.S. at served for minorities amounted to one- (Congress 100 S.Ct. at 2767-69 percent fourth of one of all construction carefully rejected examined and race-neu- contracting opportunities. Id. at 484 n. tral enacting alternatives before the MBE S.Ct. 2777 n. 72. Similarly, in Wy set-aside); id. at at 2792 gant, the plurality opinion struck down a J., (Powell, concurring). identifying After layoff provision, large race-conscious lack financing of information and lack of part “layoffs impose because the entire entry working the principal barriers achieving burden of equality racial par on against people “old-boy outside the net- 283, ticular individuals.” 476 U.S. at work,” see dissent at 937 the did not FCC S.Ct. at employees 1851. The in Wygant consider race-neutral measures to increase developed had a web of associations that of dissemination information stations about have would made involuntary separation up provide sale or to financing for for particularly painful if jobs even other were prospective purchasers. Instead, the FCC readily uniqueness available. opted immediately preferences, for racial existing job potential made its deprivation granting both in the of tax-deferred certifi- an burden. cates in unconstitutional the authorization of distress Statement, Policy sales. 1978 F.C.C.2d policy imposes an un- conduct, agency’s 982-84. The there- constitutional Shurberg burden on because fore, contrary direction deprives unique opportunity him of a Court in Croson Fullilove station, broadcasting own a solely because employed only classifications be as a of his race. Unlike the construction-indus- last resort.20 try plaintiffs Fullilove, prospec- whose I also opportunities private believe the distress tive sale sector requires parties innocent third greatly mitigated to shoulder hardship theoretical an excessive important ques- burden. The any hypothetical contractor, on individual judicial grants preferences administrative and minority determinations to individuals on the basis genealogi status,” status can or would turn status, on “minority determinations of that inquiries. horrifying cal Besides the historical me, depend it seems to must on some notion accompany pro that would associations such disadvantage, individual if not discrimination. see, ceedings, e.g., Justice Stevens’ in his citation Citizenship of the Reichs dissent Law of Novem 20. The race-neutral measures to which the dis- Jews, defining Fullilove, ber 448 U.S. at equal employment opportunity sent refers— 5, 534 n. 100 S.Ct. at 2804 n. there are no policies rules and ascertainment not de- —were appropriate objective ap criteria that could be signed significant to deal with the most barriers Furthermore, plied. flimsy it seems rather minority ownership of information and —lack well-educated, wealthy, sophis claim that a financing. Compare dissent at 947 with id. individual, undeniably ticated a member of a disagree I thus with the dissent’s conclu-

minority group, may constitutionally pre sion that race-neutral methods to address these government’s ferred distribution entry wanting. barriers have been found id. solely licenses broadcast of his or account at 948. Therefore, ancestry. government her when the li percentage sale is small of the total broadcast to a distress available equivalent no States, Although although censes held in the United Shurberg.21 there are five percentage the Hartford do not know what of recent stations in other television represents. area, by no means a in license transfers this number this is situation event, But, merely six this is not a facial chal Shurberg has lost one of Fullilove, lenge If as in and these statistics opportunities. the distress comparable consequence Shurberg; little invoked and Faith are of had been license, him Shurberg could burden on is not lessened because had lost its Center compa thirty-three other stations have been trans competed for Channel 18 have technique. li There is rea Because the incumbent ferred no hearing. rative censee, Center, allegedly community son to conclude that he shares a Faith had violated rules, Shurberg’s nonminority chances of interest with other station numerous FCC (free spread throughout country that charge) owners being awarded greater might his It is were much than cushion adverse treatment. Channel 18 license and, Shurberg typical compa in the a Hartford station wants they would have been done, after all is said and he has been rative renewal evaluation where absolutely opportunity denied an to com incumbent an “enhancement” awards the A strength pete merely ex for one because of his race. renewal based compete for a license elsewhere Enterpris Florida chance to pectancy. See Central (D.C.Cir.1982), FCC, country equivalent opportu in the is not an v. 683 F.2d es denied, nity Shurberg. applicant an U.S. As rt. ce Hartford, (1983).22 Shurberg’s license outside of he would be at 76 L.Ed.2d 346 purchase disadvantage a material because of the only alternatives would be market, assuming competitive one is enhancement the FCC accords open in the station available, hope applicants community. a new station is with ties to the local something Michigan Broadcasting Com See West Co. licensed Hartford — (D.C.Cir.1984), F.2d cert. indicated no intention of doi mission has label, dissent, denied, ng.23 To as does the Shur-

berg’s opportunity for a license as a L.Ed.2d 782 lost potential mere “windfall” is to belittle analogous Shurberg’s situation is also losing he hardship that suffers nonminority employees Wygant solely unique opportunity because of his layoff provision in Wygant, Like the race. policy places operation of the distress sale group argues policy is nar a direct burden on a small of individ- The dissent seeking only thirty-three uals: those to enter the broadcast rowly tailored because industry particular to minorities in a market. The dis- stations were transferred sent, drawing Wygant, 1978. Dissent on contends that through technique since observes, is, Shurberg's posture compared is to to a as the dissent a be at 36. That nonminority may eligible buy a sta- 22. The incumbent also has the considerable ad- 21.A be vantage being quantity, ordinarily only price if a known distress sale the revoca- tion at a proven performance, disability. while hearing bankruptcy one a record of tion If, involves case, challenger usually rely projections has on particular issues are not as in this those promises. Enterprises, and See Central Florida minority-controlled enterprises implicated, only 683 F.2d at 507. buyers eligible licensee elects to as if the are pursue sale. The state of the record a distress suggested, guess It is also dissent even to at the that if makes it difficult for me excluded, Shurberg conveyed management and con- are ex- had extent to which nonminorities company qualified cept say potentially limitless and trol of his to a that it is is, only completely It retained a financial interest then that new within the control of the FCC. all, organization permitted would have been to bid exercise of discretion that after the FCC’s many that matter he could also licenses are for the station. For determines which and how hearing, or moved to New designated which and have invested in CBS stock for revocation sought designated there. I many applications York and a broadcast license how renewal are possible hearing, alternatives noncomparative issues fail to see how of these his constitutional claim. affect are to be heard. hire, employee ling rather potential support new than an the use of race-conscious layoff, Shurberg faced with because seeks in furthering measures that interest. See entry into Hartford broadcast market. Bakke, 438 U.S. at above, however, Dissent at 951. As noted (opinion Powell, J.). Bringing operative distinction cannot be whether together students from different cultural one is faced with the loss of a econom new backgrounds promotes atmosphere “[t]he opportunity existing ic or loss of an one but ‘speculation, experiment and creation’ directly disadvantage rather how falls ... so essential to the quality higher nonminority. The constitutional dis Bakke, education.” 438 U.S. at tinction a between tolerable intolerable S.Ct. at (quoting Sweezy v. New burden on the innocent turns on the Hampshire, 77 S.Ct. uniqueness opportunity and value of the 1203, 1218, 1 (1957) (Frank L.Ed.2d 1311 existing job unique lost. An character furter, J., concurring)). Bakke, normally istics not associated with new em promoting state’s interest in diversity was ployment opportunities. But if a nonminor strengthened by the First Amendment in ity disqualified only job were from the terests of the structuring school in its edu currently given community in a available cational environment as it sees fit. “Aca race, solely of his or her I because believe freedom, though demic specifically not a reasoning apply. Wygant’s would See As enumerated right, constitutional long has City sociated General Contractors v. special been viewed as a concern of the Francisco, County San F.2d First Amendment.” Id. The deci (9th Cir.1987) (whether wide-ranging sions of a school are accordingly entitled to provision spreads its set-aside burden suffi deference, special especially when the ciently depends industry’s on each charac goal school seeks to “achieve that is of teristics; government procurement if im paramount importance in the fulfillment of portant and there are a few nonminor its mission.” Id. 438 U.S. at firms, ity crippling). the burden I at 2760. conclude that under the standards set forth outset, recognize At the I Wygant, Fullilove and the distress sale that racial or policy imposes an unfair ethnic formally burden on inno has been identi specifically peti cent nonminorities and compelling government fied as a interest tioner. by only one Justice of the Court clear, therefore, in Bakke.25 It is not at all

C. majority whether a of the Court would judgment, concur in that even the nar justifies also Indeed, higher row context of promoting program education. a means noted, Croson, ming diversity.24 plurality As have Justice Court stated recognized Powell has that a state interest that classifications based on race should be promotion diversity “strictly in the of in settings.” an edu reserved for remedial setting Croson, at -, 721; may sufficiently compel cational 109 S.Ct. at see also addition, ceptually In the FCC seeks to rationalize its no different from racial balance in the distress sale with the distinct workplace. goal promoting diversity ownership of of with- regard diversity programming. out policy of In its 25. Justice O’Connor did make reference to the statements, the FCC has contended that diversity concurring opinion rationale in her in diversity ownership goal of is a that in of Wygant, U.S. at but justifies preferences. Policy itself racial opinion suggests her for the Court in Croson Statement, F.C.C.2d at 981. Economic diver- promotion that she would not consider of racial sity may ownership part "pub- of well be diversity justification a sufficient for a racial lic interest” that the Commission is authorized at -, Croson, set-aside. See 109 S.Ct. at 721. promote. not do doubt that the Commis- appear Justice Stevens does to have endorsed may multiple ownership sion diversify limit so as to Justice Powell’s discussion in Bakke. See Croson public control of the airwaves. But a J., (Stevens, - n. at 109 S.Ct. at 733 n. 1 prevent ownership desire to concentration of concurring). justify along cannot By diversification racial lines. itself, diversity racial of is con- -, (Scalia, J., exposed variety people 109 S.Ct. at 735 to be to a wide of at id. - at & n. concurring); id. during higher their education. cf. (Stevens, J., & n. concur S.Ct. at 733 suggested analogy We considered the be- (objecting “premise to Court’s ring part) in diversity of student in tween bodies institu- decision that rests governmental that a ... higher diversity of tions education and of permissi racial classification never on a programming in Michigan broadcast West remedy past wrong” for a except as a ble Broadcasting Co. v. 735 F.2d “[ujnlike the he stating that Court” (D.C.Cir.1984). time, At we race-based decisions prohibit would goal bringing concluded that “the of FCC’s promotion of purposes, such diver other minority perspectives to the nation’s listen- that, I light In of doubt that the sity.). preference ing audiences employ a racial in would reflect a substantial FCC programming.26 promote diverse government legiti- order interest that could ... majority of a the Court to But even were mize the use of race as a factor in evaluat- reasoning Powell’s in embrace Justice ing permit applications.” Id. at 614. For Bakke, holding could not sustain being, therefore, precedent the time our policy. compels the conclusion that there is a com- Bakke, diversity Powell saw in government Justice pelling increasing interest in higher of education as a com- institutions diversity programming.27 justified pelling state interest legal validity Whatever the of the FCC It is vital to the educational preferences. policy at issue in Michigan, West mission, concluded, he that all students precedent support cannot the Commission’s “ exposure’ ‘wide ideas and have promote diversity through desire as diverse as this Nation mores of students policy, because the FCC itself Bakke, many peoples.” 438 U.S. at longer has determined that there no is an analysis at 2760. Crucial to his 98 S.Ct. inadequate diversity viewpoints in tele- fact that benefited not was the programming. recently vision de- group, just preferred but all students doctrine, termined that the fairness aimed eventually the entire nation. Essen- promoting presenta- balanced broadcast tially, Powell felt that the state has Justice interest, compelling requiring public interest students tions on matters of promoting Stevens' allel 26. Even under Justice broader view to its interest in in the interests, governmental acceptable setting. I doubt educational That is a somewhat Orwel- education, legitimate. Through public the FCC’s lian whether notion. notion, melting government pot special which Justice Stevens ex has assumed a function in Croson, pressed Wygant preparing youth participation society. and reiterated in our suggests important that "one of the most lessons Justice Powell reasoned that because at- "[t]he public mosphere ‘speculation, experiment that the American schools teach is that and cre- " ethnic, cultural, quality higher the diverse and national back ation’ education,” is “so essential to the brought together grounds university compelling that have been in our has a inter- identify ensuring ‘melting pot’ exposed do not essential est in that students are to a famous beings group peers among during the human that inhab diverse their formative differences years. Wygant, 438 U.S. at But it our land.” 476 U.S. at 98 S.Ct. J., (Stevens, dissenting) (quoted there is no indication that Justice Powell con- S.Ct. at 1867-68 at -, templated Croson, (Stevens, reasoning that his would extend be- n. 2 J., yond goal concurring)). distinctive context of education where Unlike the state's Bakke, legitimately engages the state arguably form in- served to break down Indeed, doctrination. Justice Powell indicated stereotypes, policy the FCC’s racial and ethnic fostering diversity that the state’s interest "melting pot” because does not reinforce the stronger younger: when students are knowledge never have television viewers ethnicity various station own the race or of the argued greater It be that there is force to ers. undergraduate these views at the level than in training a medical school where the is cen- anew, question primarily professional competency. 27. Were I free to reach the I tered on level, analogy wanting. simply graduate would find the It is But even at the our tradition view, say unacceptable, my experience support that the lend to the view that government educating general diversity has a role in the contribution of is substantial. added). public through par- (emphasis television that is Id. at S.Ct. at 2760 broadcasts point of the First Amendment and inimi dent on this violative the FCC has a —that public Obviously, compelling cal to the interest. seeking interest in racial or eth- compelling claim a FCC cannot interest nic programming diversity when distribut- fostering diversity programming if ing such broadcasting licenses—I am still faced diversity already disavowing exists. Yet in with the preference issue whether a for doctrine, fairness FCC acknowl minority (or management) is an edged growth media outlets appropriate tailored) (narrowly means with provide citizenry, information to the and which to achieve such programming diver- scarcity justi abandoned the rationale as a sity. The policy distress sale does regulating fication for media broadcast preference not award a for diverse stringently printed press. more than the gramming. Instead, the policy seeks to Syracuse Peace Council v. Television Sta promote diversity programming indirect- WTVH, Rcd. tion F.C.C. 5054-55 ly by limiting minority distress oppor- (1987), Syracuse sub nom. Peace tunities to broadcasting entities aff'd “with a FCC, (D.C.Cir. 867 F.2d Council v. significant minority ownership interest.” 1989). Similarly, in its brief to this court Policy Statement, 68 F.C.C.2d at 983. case, sitting in the en banc Steele the FCC As a promote means to program- diverse changes stated that in the broad “[w]ith ming, the rests on the decade, industry cast the last over basis questionable premise owner- gender] preference for [race ship bywill itself lead to minority program- scheme becomes even more remote and the (or ming programming might justification persuasive.”28 less If even thought to minority perspective).30 have a other media are substitutes for broadcast case, its brief to inus the Steele how- ing purposes presenting diverse ever, the FCC conceded “no record has viewpoints public on controversial issues of been established on which to base an as- importance, thereby rendering the fairness sumption that a nexus exists between an doctrine violative of the First Amendment gender program owner’s race or diver- in the it implausi view seems sity.” If advantages one of the of racial at the same time ble can have diversity dispel is to gener- invidious racial compelling continuing pro interest in alizations, Wygant, see 476 U.S. at programming through mote diverse the dis (Stevens, J., dissenting), S.Ct. at 1869 policy.29 tress sale passing strange policy pur- seems that a

But, assuming porting promote diversity Michigan West sur- should itself generalization. vives both and the rest on a Croson renunciation of Presum- doctrine, binding prece- the fairness and is ably, variety a wide of factors determine a entirely repudiate posi- 28. The FCC did not ness doctrine and renders the FCC’sinconsisten- brief, resolution, tion in its Winter Park cy unimportant. continuing but it came close by defending preference compa- however, its scheme in a hardly can be characterized as a “con- procedure constitutionally rative license as a gressional public determination that the need "achieving compelling sound method of programming still warrants af- government program- protection.” interest — firmative Dissent at 944 n. 25. ming.” praised policy implicat- The FCC also findings made no factual whatsoever ed in Winter Park as a "structural method[ ]” concerning the existence or nonexistence of di- designed government intrusion into "avoid[ ] programming verse in 1987. regulation content.” 30. The dissent terms the distress sale question not reach the do whether the monitored,” "thoughtfully conceived and dissent possess unique broadcast media continue to 934, yet a sale that once there is no evidence qualities justify regulation. sufficient to content slightest was concluded the FCC made even the inconsistency I note the FCC’s need for effort to monitor the new station’s contribution regulation only content because it undermines minority programming. "compelling agency's diversity- need” of the policy. based rationale for the distress sale argues continuing again, obliged point 31. Once I am dissent that the 1987 resolu- out the tion, scanty prohibited the FCC from reconsider- FCC’s brief in Winter Park offers ing policy, precedence support the distress sale takes evidence in of the existence of such a over the FCC’sdecision to discontinue the fair- nexus. programming proclivities. It fused to theory broadcaster’s subscribe that “black say in the abstract impossible seems that students are better off with black teach- ancestry or ethnic person’s race has a 276, ers.” 476 106 S.Ct. at 1848. greater profes- effect on his tastes than his stereotyping, plurality This kind of re- sion, religion, or education. marked, very “could system lead to the rejected in Court Brown v. Board Edu- dissenting colleague My insists that our Id.; Bakke, cation.” see also 438 U.S. at Michigan in controls decision West this is 310-11, (opinion Powell, 98 S.Ct. at 2759 well, sue as I find that contention un but J.) (rejecting proposition minority that doc- persuasive. Supreme Court’s subse likely tors are more quent Wygant nonminority un than doc- decisions Croson Michigan’s prob- determination of tors to interested in dermine West the medical ownership program minorities). a nexus between disadvantaged lems of ming, by and we are thus not bound West Court Croson reiterated the im- Michigan on that issue. See Dellums v. permissibility of stereotyping. Justice Ste 968, (D.C.Cir. NRC, 863 F.2d 978 n. City vens remarked that “the Richmond 1988). merely engaged Council has type “entirely The dissent maintains that it is stereotypical analysis that is a hallmark of minority foreseeable” that broadcasters Equal violations Protection Clause.” perspectives convey.” “will have distinct Croson, at -, (Ste S.Ct. 733-34 Dissent at 944. That statement more-or- vens, J., concurring). view, In my that is analysis less reflects the of West Michi exactly what this eourt Michigan West may rely gan, which held that the FCC on (and FCC) subsequently the by has done expectation” minority a “[reasonable relying expectation,” on a “reasonable likely diversity owners are to increase any supportive findings, every without 735 F.2d Michigan, content. at 610 West produce minority pro owner will 9, FCC, (reaffirming Inc. v. 495 F.2d TV gramming. Supreme aptly As the Court 929, (D.C.Cir.1973), denied, 937-38 cert. it, put “[ajbsent findings, such there is a 245, 986, 419 U.S. 95 S.Ct. 42 L.Ed.2d 194 danger that a racial merely classification is (1974)).32 reasoning I take that to be an product unthinking stereotypes or a assertion of common sense rather than an politics.” at -, form of racial Id. empirically supported proposition; as such certainly, 732. And a desire to simply way expressing it is another ra required avoid the bureaucratic effort stereotypes. cial or ethnic That kind of appli consider whether individual license “sense,” me, it seems to is all too common program cants will increase explicitly by and has been disavowed ming justify generalization. cannot a racial Supreme In Wygant, Court. the Jackson Id. sought justify Board of Education simply If we preference layoffs by teacher cit assume that individual mi- provide minority nority ing comparative the need to role mod members have a advan- tage in devising programs appeal els for its students. The Court justification rejected the Board’s and re- their group, own racial or ethnic we would decisions, Ironically, formerly FCC itself support took the ative action offered no position minority preferences should be only authority propo- such a nexus. Its for the granted only minority applicant dem after sition that influences content was a program diversity, onstrated a nexus to but it commentary citation to which conceded that was ordered court to assume that minor proposition empirical "the does not lend itself to ity ownership program diversity. would foster and, event, analysis,” any addressed FCC, (D.C.Cir.1973), TV Inc. v. 495 F.2d 937-38 whether would be enhanced in- denied, rt. ce creasing (thereby the number of owners mini- (1974); L.Ed.2d 194 Garrett v. F.2d mizing ownership) concentration of not wheth- (D.C.Cir.1975); see Notice of In Fed.Reg. er the race of an owner somehow affected quiry, MM No. at 596 31; gramming content. TV 495 F.2d at n. (1987). Our decision in TV which did not Note, see Media and the First Amendment in a question involve a constitutional and was ren Society, Free 60 Geo.LJ. dered before Court’s affirm- obliged accept dangerous corol- Whatever its authority, the House confer- lary assumption that members of the white report regarding ence the lottery system is majority opposite comparative have the ad- not instructive as to the existence of a vantage. But we have encountered and program nexus between diversity and mi- rejected assumption that in Beaumont nority ownership. Significantly, report FCC, Branch the NAACP v. 854 F.2d purport does not to make historical find- of 501, (D.C.Cir.1988). There, we remand- fact, ings of Congress as did in enacting ed and directed the hearing, FCC to hold a plan the set-aside at issue in Fullilove. alia, inter to determine whether a station Rather, the concerning statements the ex- owner’s excuse sharply-reduced for his istence of a nexus ownership between and employment black blacks were not programming are in —that the nature predic- interested in or country suitable for a new tions as to future behavior. Nowhere in and support- western music format —was report the House present- there evidence able. ed of a program nexus between diversity minority ownership, nor is there refer- event, apparent why is not at all upon ence to evidence which the committee owner, a station be she minority or nonmi- drew. There are simply assertions that the nority, programming would make decisions former will follow from See, the latter. according personal to her tastes rather (“The e.g., id. at 40 nexus between diversi- response than in to the demands of the ty of ownership media diversity brief, marketplace. In its Steele for exam- programming services been repeatedly ple, explained the FCC that it has deter- recognized by both the Commission and the rulemaking proceed- mined a series of courts.”);34 (con- see also dissent at 946 ings that market primary forces are the ceding that merely evidence is “anecedo- programming.33 creators diverse tal”). argued It is also Congress that made thing The closest to an findings actual historical support the nexus between finding is that “the Conferees find minority that the past inequities effects of approved stemming when it lottery system from racial and ethnic selection of broadcast discrimination have result- licenses. H.R. Rep. 765, ed in underrepresentation a severe Cong., (1982). 97th 2d of mi- Sess. No. Although holding norities the media of of Fullilove is mass communica- tions, Congress may remedy past adversely act to as it has discrimi- affected their upon particularized participation nation based less other his- sectors of the econo- torical than required my 765, evidence would be as well.” H.R.Rep. No. 97th governmental body another Cong., or a finding court of 2d Sess. 43 This law, it is not clear whether the “underrepresentation” same au- nothing does to es- thority exists outside the remedial context. tablish the nexus between owner- complains Congress 33. The dissent indirectly is "be- do what the First Amendment place,” tween a rock and a hard dissent at prevents doing directly them from in order to because, hand, on the one it cannot under the justify plan that would otherwise violate the directly First Amendment ensure a certain kind Fifth Amendment. and, programming viewpoint diversity, hand, the other the distress sale violates above, supra 34. As noted see note the FCC the Fifth Amendment because there is no evi- originally case-by-case insisted on a determina dence pro- will ensure diverse as to whether a owner would tion gramming. place hardly The rock and the hard programming diversity, enhance but was or ominous, however, seem so when one realizes court, dered dence, supporting this without evi they actually provi- are two constitutional to assume that nexus. See TV Inc. v. may simply sions. It be that FCC, (D.C.Cir.1973), 495 F.2d cert. gramming justify is not a sufficient basis to denied, 42 L.Ed.2d preference, ensuring because diverse con- (1974); Garrett v. 513 F.2d 1062- permissible tent of radio broadcasts is (D.C.Cir.1975). Amendment, parody goal In an unfortunate under the First much less a reasoning, Congress compelling governmental apparently relied on the TV interest under decision, apparent implication progeny Fifth. The of Chief in the FCC and this reasoning court, Wald's is that and the FCC disputed to document the nexus. Indeed, diversity ship programming. compelling diverse that furthers a goes on from there to discuss report encompasses state interest a far broader economy minorities in the rather the role of array qualifications of and characteris- programming area. at 44. than in the Id. origin tics of which racial or ethnic is but single though important element. Peti- my position— respectfully I submit that special program, tioner’s admissions fo- given effect to concerning the be solely diversity, cused on ethnic would report hardly “judi- House conference —is 940, at hinder rather than further attainment of presumptiveness,” dissent or a cial Congress,” genuine diversity. of dissent at 946 “belittlement Rather, 29, the dissent accuses. n. as Bakke, 438 U.S. at 98 S.Ct. at 2761 judicial ipse dixit would be defer to such (footnote omitted).36 Justice Powell distin- my dissenting colleague is If abdication. guished programs pro- more flexible correct, congressional and mere assertion moting diversity. particular, In academic support any of material devel- without the pointed he poli- to the Harvard admissions hearings adequate oped congressional cy, which considered race as one factor in a justify system of of broad- distribution decision, promoted multi-factor as one that race, cast licenses based on then the Su- diversity disregarding ethnic without indi- preme language in focus- Court’s Fullilove rights. vidual Such a would sur- ing on the evidence of discrimination scrutiny vive constitutional because it government contracting brought that was operate in would a manner “flexible just empty Congress before was rhetoric.35 enough pertinent to consider all elements view, Congress, under that can instead diversity light particular quali- of of the agencies government command that award applicant.” of fications each Id. at privileges to citizens benefits or American might 2762. Whatever we think of simple stereotypes. based on do the constitutional distinction between a ra- not that is sound constitutional law. believe quota “plus-factor,” cial and a racial Jus- view, therefore, my attempt In the FCC’s crucial, tice Powell found the difference justify policy through sale the distress opinion only and we must look to his —the goal recognized analogy diversity as promotion one to find “diversity” of a com- compelling by Justice Powell Bakke is pelling guidance. state interest —for However, inadequate. assuming even dissent’s view that the FCC has cleared all The distress sale shares the same described, the hurdles I have the distress special quota flaw the admissions struck clearly fails the Bakke test for considering down Bakke. Instead of tailoring. narrow range broad of factors that would lead a prospective station owner to contribute to Bakke, Justice Powell condemned the programming, policy singles diverse preference designed use of a racial aspect diversity out one race was the elevates it mote when Shurberg factor considered in certain admissions de- determinative status. cisions: “foreclosed from all consideration for [the mistakenly suggests provided 35. The dissent that I have an “abundant historical basis" for the adopted approach of Justice Stevens’ dis- plan set-aside in Fullilove. 448 U.S. at senting opinion in Fullilove. Dissent at 940 & Indeed, C.J.). (opinion Burger, S.Ct. at 2774 My "judicial n. concern is not that review Congress purport rely did not even on procedur- a consideration of the should include al evidence. decisionmaking process.” character Fullilove, telling analytical parallel, 36. For a see Com J., (Stevens, dissenting). That contention has ment, Minority Policy: Distress Sale Public properly rejected been this court. National Interest, Interest v. The Public’s Wisc.L.Rev. Devine, Treasury Employees F.2d Union (”[B]y approving assignee solely ... (D.C.Cir.1984). problem 117 n. 8 with minority ownership on the basis of its and basic Congress’ "findings" the nexus between di- qualifications, great the Commission does a dis versity program- goal increasing service to its ultimate diversi ming they is not were made without ade- ty programming.”). quate Congress deliberation but that did not have before it the kind of "direct evidence” that simply sity because he was to withstand Hartford constitutional scrutiny station] court, right wrong light admission, color or had the sur- and this of that Bakke, name.” 438 U.S. at a remand ordered to enable the FCC to Powell, J.). (opinion particular issue, In a reconsider intervened market, diversity programming might continuing prevent resolution to promoted by factors other than a best expending FCC from pursue funds to ancestry, poli- broadcaster’s race or but the inquiry in accordance with our remand or cy provision taking no for those makes report der. The conference accompanying The not factors into account.37 FCC does the resolution said Committee also “[t]he aspects consider whether of a nonminori- instructs the Commission to resolve within suggest other than his race ty’s application days proceedings all that have been diversity existing that he would add by remanded appeals, the court of includ does it examine a mi- programming. Nor Shurberg Broadcasting Hart ing ... nority applicant to determine whether a ford, Inc. v. Federal Communications indeed lead to an sale to him or her would Commission, (D.C.Cir. No. 84-1600 or programming.38 in diverse Rep. increase 25, 1987).” dered remanded June S. Cong., (1987). No. 100th 1st Sess. 77 D. surprisingly, complied Not the FCC truly extraordinary congressional direction What about rather than our re (the order, creator mand case is that after closed the docket which the Shurberg considered, and, policy) admitted that case the distress sale was in ac resolution, adequately continuing not established a nexus be- cordance with the had prior policy.39 tween status and broadcast diver- reinstated its congressional especially 37. This is in contrast to the manner in which 39.The action is trou- compa- is taken into account in bling prevented status because it the FCC from com- noted, licensing hearings. 6, supra As rative plying with a direct order of this court to re- opinion 908 n. ality minority preference I offer no on the constitution- solve the issues described in its Notice of In- compa- schemes in quiry concerning justification for the dis- licensing procedures rative such as those at is- policy. continuing tress sale resolution Park, ques- which are into sue in Winter called commanded that no funds shall be used "to by But even tion recent Court cases. continue a reexamination of” the distress sale Michigan, upheld in West we the constitutionali- policy, Appropriations and the Senate Commit- ty comparative process of the FCC's evaluation explicitly tee directed the FCC "to resolve within largely explicitly provides because "it for exami- days proceedings all that have been remand- variety nation of a wide applicant's potential quality of traits to assess an ..., including appeals ed the court of Shur- increasing for berg, poli- a manner consistent with the ... programming." F.2d at cies that mandated incentives for minorities and only partial Race is also a determinant in the ownership.” S.Rep. women in broadcast No. provided random selection alternative for (1987). Cong., By 100th 1st Sess. 77 Congress in the 1982 amendments to the Com- action, only Congress prevented the FCC 309(i) See 47 U.S.C. § munications Act of 1934. (1982). attempting support from to muster factual for a position impermissible that it conceded was policy’s discussing 38. When the distress sale ef- record, present placed but it has the FCC in nonminorities, the states that “no fect on dissent obligated disregard a situation where it pre-determined number of stations is reserved Congress’ an order of this Court. action thus exclusively minority ownership.” Dissent at implications, carries serious constitutional be- However, random, group specific, albeit stripping cause there is little difference between placed aside: all those of licenses are set designated-for-hearing jurisdiction stripping a court of the Execu- Analytically, status. independent agency an of au- tive Branch or specific num- there is little difference between thority comply with orders of the court. Cf. being specific group being ber set aside and Klein, (13 Wall.) States v. 80 U.S. United 145, minority-use only insofar as the set aside for (1872) (Congress pow- exceeds 20 L.Ed. 519 impact on nonminorities. set-aside has an "language exceptions er under clause when case, absolutely barred either nonminorities are plainly shows that it does not in- [statute] bidding predetermined from on some number jurisdiction except tend to withhold as means to number is calculated of licenses. Whether that McCardle, Wall.) end.”); (7 by percentage by fortuity an 506, Ex Parte those stations —all designated hearing of mo- which are no 19 L.Ed. —is ment. requirement fails the of narrow it therefore dissenting colleague draws on My support tailoring claim enunciated Bakke. continuing resolution nale, tively as a berg in 1984. position with a claims to be withstand from marily on the because authority to mittee would fact, change a law that report of service to S. that there is a ling interest distress sale years earlier.40 ly motivated cy was constitutional statements ownership and quired In It is doubtful fail to Rep. programming, justification. While rely exclusively on the question whether supra at authority. Whichever ^[******] sum, proxy “[diversity of but discrimination. relies for nexus for reasons discussed No. The 1987 it consists which the FCC has see, the Senate minority and women seeks to equal protection see made for such policy even principally programming remedy the effects of references to 923-24. add little opinion of though, how nexus between that the FCC has a fostering programming fails to establish the re- House conference Moreover, support 100th in 1987 can be relevant it uses racial FCC, report merely of an assertion strengthen diversity, and alterna- ownership results in the distress sale Appropriations Com- a Cong., 1st foundation for if it were pursuing diversity policy MacKinnon, cannot, after the the Commission had effect three applied itself dissent purposes actual- diversity ratio- scrutiny. remedial and programming. policy cannot congressional congressional diversity of stereotypes audiences.” terse 1987 relies search of improved relevant, purports to Shur- Sess. compel- earlier. report FCC’s goals J., past poli- pri- di- openly and years of Hartford. We too have ficiaries of nation. There that the FCC barrier to to a racial set-aside. programs of the distress sale cent unique them of important constitutional ly unrelated tional. resort but to conclude that however, that I have no alternative now and it sale tal discrimination” as used carries the soft sale dy past The historical al ethnic suffered from the effects of general Chief Croson. Shurberg challenged the and employees. n. policy imposes heavy policy minorities as might not even be a result of “socie- proportional representation for bene- provides remedial rationale fares no better. in this analytically, to avoid television discrimination, policy’s seeking findings applied If to aid minorities before to the need for such a there is not opportunities Congress legislating racial and government programs or feder- fairly for a television license “remedial,” Wald sought basis for the proceeding no is no In beneficiaries an narrowly really by completely outlets. imprecise meaning that procedures suggests, a Shurberg opportunity to policy only as a last indication, underrepresentation, Finally, the distress because employ is no constitutional event, sought, procedural- FCC’s as used question. to tailored constitutionality by the and burden see past is unconstitu- have compete for deciding plan the distress race-neutral its effect is moreover, dissent at depriving resorting ensuring discrimi- Court compete to reme- remedy, actually on inno- Croson, think, after does, agency if it versity, and even MacKINNON, Senior Circuit exists a nexus to show that there failed (concurring judgment): between Shurberg Shurberg Broadcast- Alan Nonminorities inter- program content. Hartford, (Shurberg) ing Company Inc. completely are particular licenses ested decision of the policy, petition for review of the operation excluded cations, (D.C.Cir. impossibility Inc. v. 728 F.2d 1519 40. It is the of retroactive effect "dismiss) 1984). saying entire continuing that I ] resolution irrelevant that renders the colleague my apparent litigation. Congress might episode,” be able to dissent to this prospective application ly between prospective overlooks the distinction dictate a new rule for pending dispute. and retroactive effect. See Multi-State Communi (FCC Federal Communications Commission suited in the revocation of all its licenses Commission) Center, permitting Faith except Hartford, WHCT-TV in Connecticut under Commission’s designated whose license had been for rev- program,1 to sell its Hartford broad- hearing. ocation The first attempts by two properties cast to Astroline Communica- Faith Center to make distress sales of (Astro- Company Partnership tions Limited WHCT-TY failed due to the minority pur- line), minority (Hispanic) controlled enter- inability chasers’ financing. to obtain Af- prise. Shurberg challenges the FCC deci- ter attempts, these two failed Shurberg grounds. sion on several His constitutional attempted open comparative have an challenge alleging that the sale to Astroline hearing petition but his denied under the distress sale violates Subsequently, FCC. the Hartford station equal protection guaranteed by the Fifth and license were transferred to Astroline in Amendment2 warrants a reversal of the non-competitive proceeding pursuant ground Commission’s decision on the that it Commission’s distress sale satisfy “narrowly does not tailored” promotes minority participation in the own- requirement equal protection analysis. ership of properties.3 broadcast The trans- action was consummated on January

I. Facts 1985. Thereafter the case came before this Center, (Faith Prior to Faith Inc. court for review on a by Shurberg Petition Center) held licenses various cities to eventually, response request to the operate three television stations and one Commission, record, of the However, FM station. Faith Center solic- “case,” was remanded to the pur- ited funds that were not used for the FCC. With pose described in its broadcasts which re- the case in that status at the end of the * policy promote by 1.The FCC’sdistress sale to Mi- Tax certificates authorized 26 U.S.C. Facilities, nority Ownership Broadcasting of 68 permit properties § 1071 sellers of broadcast 979, expanded F.C.C.2d as and reaffirmed in capital gains to defer taxation on a sale when- provides: “necessary appropriate ever the sale was or to policy broadcasting The distress sale allows change policy adoption effectuate a in a or the designated licensees whose licenses have been policy by of a new the Commission with re- hearing, prior for revocation to the com- spect ownership and control of radio hearing, mencement of a to sell their station broadcasting policy stations ...” The arose minority-owned entity, ato or controlled at a originally in connection with divestitures im- price “substantially” below its fair market val- posed by multiple the Commission’s owner- desig- ue. A licensee whose license has been ship rules. hearing ordinarily prohib- nated for would be 852, Id. at 858. selling, assigning ited from or otherwise dis- policy requiring The 1978 statement the dis- interest, posing of its until the issues have substantially price tress sale to be below its fair Thus, been resolved in the licensee's favor. expanded market values was in 1980 to limit the extension of the tax certificate and distress recovery licensee’s to not more than 75% of the minority by policies ownership fosters Broadcasting station’s fair market value. Lee providing broadcast licensees with an incen- (1980). Corp., 76 F.C.C.2d 462 minority- tive to transfer their interests to Id., owned or controlled entities. at 851. 497, 693, Bolling Sharpe, 2. Policy Regarding In the Matter Commission of L.Ed. 884 Minority Ownership Advancement of 849, Broadcasting, F.C.C.2d The stated adoption 3. See n. 1. Since its 38 dis- objective diversity programming was to increase by approved tress sales have been the Commis- principles to serve First Amendment and to re- fostering minority sion and the overall effort of viewpoints. flect minorities’ tastes and Id. at ownership moderately has been successful. See reported: The Commission also copies Approved, Distress Sales available from approved we have sales Since FCC Consumer Assistance and Small Business certificates,* have and 55 tax contribut- Division, (updated Office of Public Affairs Octo- significantly minority ed to increased owner- 18, 1988). ber Astroline states that the number ship broadcasting.... amendment of [The acquired by all controlled stations policy departure distress sale marks a the] nearly means has doubled from less than one long practice prohibit- from our established (1) (2) percent ing in 1977 to now close to two a licensee in a renewal or revocation by percent properties hearing disposing prior of all broadcast licensed from of its interests Brief, 3). (Astroline p. n. issues in its favor. the Commission. the resolution of Congress, following gender preferences term rider that were effect Congress’ Continuing prior September 12, 1986, was attached to Res- reinstat olution, approved December 1987: presiding ed and that the Administrative Board, Judges, Law appropriated

That none of the funds Review and the repeal, process this Act shall be used to to retro Office of the General Counsel all in, actively apply changes licensing or to continue cases in a manner consistent of, policies a reexamination of the policy prior with Commission in effect Federal Communications Commission 1986. Id4 September respect comparative licensing, Shurberg’s then applica- denied grant distress sales and tax certificates comparative hearing tion for a and Shur- expand mi ed under 27 U.S.C. berg now seeks review this court of the nority and women of broad Shurberg complains Commission’s Order. licenses, including casting those estab being comparative hearing, denied a al- Policy Minority lished Statement parte that ex leges contacts tainted Facilities, Oownership of Broadcast validity proceedings, and attacks the F.C.C.2d 979 and 69 F.C.C.2d application Commission’s of its (1982) amended 52 R.R.2d 1313 [sic4] However, to him. Corp., Television Mid-Florida case has leveled down to a constitutional (1978) [sic5], F.C.C.2d 607 Rev. Bd. policy. attack on the distress sale prior September which were effective 12, 1986, other than to close MM Docket Analysis II. Constitutional prior No. 86-484 with a reinstatement of lifting suspension noted,5 As others have sales, licenses, applications, proceed opinions constitutionality Court ings, suspended pending which were the minority preference programs are unclear inquiry.... conclusion of the disjoined. principal The four cases— Regents University the 9, v. February On 1988 the an FCC issued of California Center, Bakke, Faith Inc. BC Docket No. 265, 2733, Order 438 U.S. 98 S.Ct. 57 Klutznick, (1978); Fullilove v. following: 80-730 which included the L.Ed.2d 750 448, 2758, 448 U.S. 100 S.Ct. 65 L.Ed.2d 902 compliance litigation In with this [set (1980); Wygant v. Jackson Board Edu- above], forth the Commission has or cation, 267, 1842, 476 U.S. 106 90 closed, S.Ct. dered MM Docket No. 86-484 (1986); City Richmond v. L.Ed.2d 260 thereby terminating the reexamination of — Co., -, J.A. Croson racial, licensing policies U.S. 109 S.Ct. its based on eth 706, (citations gender preferences. Order, (1989) 102 L.Ed.2d 854 nic or 88-17, 14, adopted January Slip Opinion) spawned have 1988. In or multitude of comply legislation separate opinions. por- der to with the fully, Only and diverse the Commission also ordered li tions of Justice O’Connor’s Croson opinion its racial, censing policies based on ethnic or majority commanded a of the Court.6 Con- Johnson, 4. The congressional program ban on reexamination of tress sale is flawed. In the FCC's distress sale was reenacted in Transportation Agency implemented an affirma- S-10,004 7, Cong.Rec. (Daily July 1988. 134 1988). ed. program job tive action in which the sex of a applicant could be taken as one factor in decision, employment an and the Court relied See, Silberman, at 910. Dissent at 934. that, heavily program, on the fact under the sex plus Transportation Agency, or race was considered as a Johnson 480 U.S. mere factor in 616, 1442, (1987), process: 107 S.Ct. 94 L.Ed.2d 615 is not the evaluation strictly applicable analysis to the constitutional merely Plan authorizes that considera- [T]he required that is here. Johnson is a Title VII given tion be to affirmative action concerns expressly recognized case which that Title VII evaluating qualified applicants.... when analysis analysis. differs from constitutional Agency requires Plan women to com- [T]he U.S. 480 at 627-28 n. 107 at 1449-50 n. 6. S.Ct. pete qualified applicants. with all other No However, applying require- Johnson's Title VII persons automatically are excluded from con- ments, analogous which are to constitutional sideration; qualifica- all are able to have their here, analysis required minority the FCC’s dis-

929 scrutiny. Croson at -, 109 S.Ct. dif- strict colleagues have drawn my sequently, J.), -, (O’Connor, S.Ct. 735 rang- 721 109 from those wide at conclusions ferential J.). task, therefore, (Scalia, is to examination two Such ing The opinions. 1) “The racial classification ‘must opinion phases: based soundest an fashion minority preference cases. compelling government reasoning justified in the Wygant, following generally Justice 476 at 106 my opinion, interest.’” U.S. Sidoti, princi- Palmore v. first three reasoning quoting Powell’s at S.Ct. 1818 and the Croson majority is 1879, 1882, pal cases7 80 104 S.Ct. 466 U.S. solving trouble- approach superior -, Croson (1984); at L.Ed.2d 421 by minority prefer- presented issues J.). 2) some (O’Connor, govern at 720 S.Ct. programs. ence objective used to program ment achieve “narrowly tailored.” Croson at must be sift- principles can be settled broad Some 728; Fullilove, -, at U.S. 109 S.Ct. decisions the Court’s ed from Wygant 2775; at at at S.Ct. First, “benign” ra- programs. preference narrowly A tailored at 1847. 106 S.Ct. given are distinctions cial or ancestoral program must have two charact preference classi- as invidious of review standard same — First, must program bear eristics.9 Croson, -, at U.S. fications. compelling state relationship to the some J.), (O’Connor, 109 S.Ct. at 721 Fullilove, it seeks to vindicate. interest Wygant, J.). 476 U.S. at (Scalia, (Pow 514-15, Fullilove, 448 U.S. at 1846; 448 U.S. at at 106 S.Ct. Second, oper ell, J.).10 must C.J.); program (Burger, at 2781 100 S.Ct. on innocent non- its burden Bakke, 291-299, ate to minimize at 98 S.Ct. Wygant, is minorities. J.).8 (Powell, That standard however, difficult, that the Court appli- to conclude against weighed those other tions impose requirement where the such would not cants. (em- right equal protection is in- Johnson, constitutional U.S. at explanation the Court's original). best phasis volved. The opinion act is that Justice Powell’s FCC’s failure to so opposite given it only prior end since precisely in Bakke is the consideration works completely promoting license out is a a broadcast takes issue to whether licensing process all competitive program. justification normal nonminority for a race conscious included, individuals, Shurberg are occa- Consequently, had the the Court has not competing. The automatically from narrowly excluded apply develop tailored sion to plus merely a small minority’s is not status here diversity. promoting Be- explicitly to doctrine Rather, factor is the determinative factor. policy imposes minority distress sale cause any opportu- deprives all nonminorities that re- injury on innocent nonminorities the same Thus, Bren- Justice nity compete. the virtues to justification asserted gardless of whether Transporta- narrowly tailored nan found in promote program is to action the affirmative vices in the Agency point out the discrimination, tion Plan remedy it is past toor program. minority sale distress untailored would test logical the no undue burden that Uncertainty Con- as to the Choper, Continued equal 7. both cases. apply force in with Classifications: Racial stitutionality of Remedial recognizes Faith 46 "that 10.The in n. dissent Puzzle, Iowa of the Identifying the Pieces to racial dis- was unrelated Center’s misconduct 1987). (Jan. L.Rev. [S]urely this then asserts] [And crimination. points does. It no difference.” But it can make recitation mere “[T]he Croson: 8. As stated remedy one does not even out that award this racial purpose for a legitimate "benign’ or a classification, While it is racial discrimination. instance of weight.” no little or to is entitled required the "resources themselves not that at -, (Citing Wein at 724. S.Ct. Croson discrimination," if product past must be n. Wiesenfeld, 636 at berger v. been, pro- minority they sale had distress 43 L.Ed.2d n. at S.Ct. 1225 identifiable gram have remedied some would here, which, process the due (1975) involved as discrimination, justifica- past not even that but Thus, Amendment.). is there of the Fifth clause pro- minority sale The distress tion here. exists pro difference, respect, between no de- gram presents opportunities are not that by purpose "benign” nouncements or pendent any past on discrimination —societal legislatures. or state Therefore, program no rela- specific. bears governmental interest in tionship explicitly that the asserted held to not Court The required past promoting remedying discrimination aimed program conscious a race S.Ct. at 2793 minimize Fullilove. 448 U.S. at to structured must be quite (Powell, J.). It is nonminorities. innocent on burden 1851-52; Fullilove, equal protection denies the of the law to (Powell, J.). at 2793. innocent nonminorities. thirty-eight The licenses of stations support contentions asserted in have two subjected been distress sale constitutionality of the Commission’s program.12 While the number of stations policy distress sale are that it remedies great, is not the value of the stations in- past promotes societal discrimination and volved run well into the millions. For in- programming diversity. op. 939, Dissent stance the license renewals of high- RKO’s the Commission’s distress 952.11 Because ly Boston, valuable TV stations New program narrowly sale is not tailored to Angeles denied,13 (not York and Los were required objectives, achieve either of its grounds discrimination), on they program, my opinion, fails to meet con- could have been transferred under mi- requirements. stitutional nority program, distress sale the FCC con- senting. program Had the been in effect A. The Untailored Effect the Greater Boston station could program distress sale is not not brought also have been under the distress tailored,” “narrowly completely it is a un- program.14 Rupert sale Murdoch’s tele- is, program. program tailored That vision station in might Boston also have open-ended may circumstances brought been under the applied any cause it to be broadcast publicized as a result of the well legislative regard any licensee past without discrim- application intervention in the of the FCC’s thereby deprive ination and all nonminori- change cross-ownership See, right equal ties of their access to a Publishers, News America rules. Inc. v. program broadcast license. The FCC (D.C.Cir.1988). thus 844 F.2d 800 question promoting program versity 11.The of whether sufficiently compelling as an interest ming diversity remedying societal discrimi policies" "sustain the use of affirmative action compelling government nation constitute Michigan. inter and this court is bound West Dis- City Judge ests need not be reached here. In Rich reluctantly sent Silberman ac- Co., cepts supra, holding mond v. Croson Michigan Justice O’Connor’s in West plurality opinion open gramming diversity possibility held compelling constitutes a Congress, pursuant power state to its under interest. He considers Section 5 such contention to Amendment, Silberman, may legislate be “a of the 14th somewhat Orwellian race-con notion.” context, programs grounds significant J. at n. 27. In this scious which the it is several at -, plurality note that Justice states not. Croson O'Connor’s Croson 109 S.Ct. at 720. concurrence, opinion however, Kennedy’s indicates that Justice racial classifications point "strictly should be reserved edly challenged for remedial set- Justice O'Connor's assertion tings” fueling in order to avoid Congress may legislate remedy animosi- society at-, (O'Connor, ties. Croson 109 S.Ct. at 721 discrimination and noted that such a case "is J.). us, This case does not involve a “remedial not before reconsideration of that issue setting.” Croson, at -, must await some further case.” Because the J.). (Kennedy, 109 S.Ct. at 734 tailored, narrowly necessary it is not in this promoting programming On the issue of di- opinion question to reach the whether either versity, the dissent and Silberman have promoting programming diversity remedying Bakke, disagreement. some Justice Powell sufficiently societal discrimination are a com- promotion held that in the pelling governmental support interest to the use school/university compel- context constituted a government sponsored minority preference 311-313, ling state interest. 438 U.S. at programs. (Powell, J.). past govern- at 2759-60 Outside of discrimination, recog- mental the Court has not Approved, copies 12. See Distress Sales available any governmental nized other interest as com- from FCC Consumer Assistance and Small Busi- Yet, observes, pelling. as the dissent Justice Division, (updated ness Office of Public Affairs Wygant opinion explicitly O’Connor's holds 18, 1988). October open possibility that “lower courts” could rely sufficiently compelling on other interests General, FCC, 13. See RKO Inc. v. 670 F.2d 215 poli- "to sustain the use of affirmative action (D.C.Cir.1981) (license renewal denied for cor- Wygant, cies.” 476 U.S. at 106 S.Ct. at 1853 misconduct). porate (O’Connor, J.). The dissent contends that this FCC, holding Michigan Broadcasting Circuit's in West Corporation 14. Greater Boston Television v. FCC, (D.C.Cir.1984), (D.C.Cir.1971)(license v. 735 F.2d 463 F.2d 268 renewal de- recognized promotion programming contacts). improper parte di- nied for ex tice, Thus, program only judging whether the is a small number of licenses have pursuant narrowly tailored consideration should be been transferred policy, limitation, there is no actual theory to the number of stations given not or in practice, on the affected but also to the number of licenses that have been may be so transferred. Nor any market of is there value and share broadcast requirement that the offense of the brought could be under licen- the stations that any way see be in any related to act of resulting large program subsi- unlawful discrimination. The distress minority program dy.15 The distress sale program bears no relationship any al- for presents opportunities minorities be leged and, past therefore, discrimination competition re- insulated from all and to majority violates Croson position that: very ceive substantial subsidies that are way past [Bjecause racial any not in related to discrimina- characteristics so seldom provide disparate a relevant basis The number of licenses which be- tion. treatment, and because for distress sales under the classifications come available race fortuitous, potentially based on are so harmful program wholly be- minority body politic, to the entire especially it is upon by par- decisions third ing dependent important any that the reasons for such practices run ty licensees whose afoul clearly classification be identified and un- requirements.16 legitimate. questionably good example of a presents This case at -, 727, quoting Croson becoming subject minority to the license Fullilove, supra, 448 U.S. at program independent any sales (Stevens, J., (foot dissenting) S.Ct. 2903-04 Here, Faith past discrimination. Center omitted).17 any respect way, is untailored completely the constitutional and obliterates dissent states that the small number 18. The seeking provide empiri- rights a license. It of all nonminorities sales are insufficient to minority merely plus proper programming places as one status data as to whether never cal diversity my weigh licensing is achieved. Dissent at 946. In factor for the Commission to view, Agency, Transportation pro- as Johnson v. 616, the small sales number of distress 1442, (1987), perfect group study. L.Ed.2d 615 did vides a for such respect judicial or is ate with administra- diversity, is not a means promoting Fullilove proceedings.” tive Specifically, goal. to its reasonably related See, at 2774. Dissent 940. no is that there has been argument minority of a nexus between demonstration stating the 1987 In Senate Commit assertive, diversity. In ownership programming Report merely the Silber- and tee was However, opinion certainly correct. conclusion, man is this contention reasoning to its H.R.Rep. Report also reference to made expressed in Congress’ decision discounts Sess., (1982), Cong., 2d No. 97th prohibit rider19 to appropriations the 1987 clearly, length, which and at some detailed expending from funds to the Commission support legislative conclusion nexus exists between investigate whether a minority nexus there was a between minority diversity and own- programming ownership programming diversity. and Report stated Con- ership. The Committee H.R.Rep. Report at 42.21 The 1987 Senate found that there gress acted because it so Report by reference. incorporated the 1982 S.Rep. No. 100th such a nexus. incorporation, it is difficult Given such (1987).20 The Cong., 1st Silberman Sess. dispute Congress the assertion that found congression- whether “mere opinion doubts minority there was a nexus between owner embody may taken to al assertions” programming diversity. ship and Such finding to courts must congressional which however, finding, completely does not insu no such at 922. have defer. Silberman minority preference program from late a required to Congress is not write doubt. And, previously judicial review.22 as stat justify legislation. its legal opinions ed, review must be conducted with stated in Fullilove: Burger Justice Croson -, Chief scrutiny.23 strict 109 S.Ct. at course, may legislate (O’Connor, J.), (Scalia, with- “Congress, of J.). appropri- the kind of ‘record’ compiling out Judge Silberman relies on the FCC’sbrief in Supra, at 927-28. support as for his assertion that there is Steele Report Appropriations Committee

20. The minority ownership pro- and no nexus between states: gramming diversity. op., at 922-23. Silberman Congress expressed support its The FCC Steele states: brief policies past (minority preference) in the and developed support No record has ever been diversity promoting of owner- has found that critical, underlying assumption upon impor- ship properties satisfies of broadcast preference necessarily which this scheme is goals. Diversity public policy of owner- tant gender based—that the racial or characteris- diversity programming ship results in tics of a station’s owner will have [sic] women au- improved service to significant programming. effect on station's diences. Steele at 22. brief Cong., S.Rep. 100th 1st Sess. 76 No. forces are The brief concluded that "market Appropriations Report the Senate 21. The be, principally respon- now and will continue to 97-765, H.R.Conf.Rep. No. cites 97th Committee Cong., providing diversity programming sible for 37-44, 1982, authority as for its 2d Sess. congression- viewpoint." Id. at 22-23. The past supported in the assertion that however, finding, eclipses argument FCC’s al minority preference programs for the broad- and the FCC’s brief in Winter Park in Steele Cong., industry. S.Rep. casting No. 100th FCC, Nos. 85-1755 and 85- Communications v. (1987). The cited House Confer- 1st Sess. 76-77 1765, appears repudiate Steele brief. its (1982) replete Report with statements ence outlining Park, states that its mi- Winter the Commission minority preference finding that nority preference competitive li- licensing promotes programs diver- in broadcast censing process promotes diversity minority example, Report sity programming. For public's exposure "the enhances nexus between of media states: “The ownership significant, groups up diverse that make programming servic- Park brief at 30. nation.” FCC Winter recognized by repeatedly both the been es has H.R.Conf.Rep. and the courts." Commission S.Ct. at 2772. Chief 22. Fullilove at (1982). My Cong., at 40 No. 97th 2d Sess. Burger, speaking prefer- in a Justice view, personal is identical to that asserted case, congressional program A ence remarked: No. the FCC brief in Steele v. (the finding “render it choice or does not that, below, undoubtedly while discussed scrutiny." judicial gram) immune from exceptions, market forces there be some largely predominate programming —but congressional finding TAN 5. controls. analogizes B. Undue Burden Nonminorities denial. The dissent the distress program to an affirmative action hir- remedy past of discrimination As a and a ing plan opposed as to a firing plan. Jus- promote diversity, minority to the means tice Wygant opinion Powell’s expressed a program unduly distress sale burdens inno- preference remedying employment operates nonminorities. It dis- cent so as to through hiring crimination necessarily impact plans on a discrete class of because i.e., every nonminority ap- they diffused the burden of a race con- nonminorities — plicant particu- for a broadcast license in a program scious throughout society instead designated lar market that is for revocation disrupting expectations the of a small hearing. program effect of this group with an established interest. 476 particularly damaging because it re- 106 S.Ct. at 1851. opportunity moves the to obtain a license in analysis The dissent’s unpersuasive. competitive unlikely market that is to be minority preference While the plan does repeated.24 Normally, a broadcast license neatly fit into Justice Powell’s dichoto- by is retained an incumbent licensee if he my hiring firing plans outlined in desires; thus, desig- so a broadcast license Wygant, program the operates more like a hearing nated for revocation that is unlike- firing plan in imposes its burden presents ly opportuni- to be renewed a rare squarely group on a small peo- of innocent ty Shurberg for individuals such as Allen ple, Shurberg, like denying them unique attempt particu- a license in a to obtain tangible opportunity benefit—the program lar market.25 The distress sale compete for a broadcast license that would opportunity away every takes this from normally applicable decisions, under the individual who is not classified as a minori- open statute and rules be comparative to a ty as defined the FCC.26 hearing. Communications Act of Shurberg The dissent asserts that since 309(e), amended; U.S.C. Ashbacker Ra- § did not have a vested interest Corp. 327, 330, dio v. 326 U.S. station, expecta- the he lacked a reasonable 148, 150, (1945).27Thus, S.Ct. 90 L.Ed. 108 acquiring any tion of license and hence program completely distress sale fore- cannot succeed in a constitutional attack on Shurberg closed perhaps from his best and policy. Dissent at 951-52. This is only genuine prospect obtaining an own- peculiar reasoning. my view the fact ership way, interest in Hartford. In this applicant hearing that he is a valid denied a damage always him the FCC concentrates the permits successfully to his burden of attack the unconstitutional character minority preference program single aon “acknowledge^” p. subject minority preference pro- 24. The dissent which are program grams. acts to "re- Id. at 20-21. opportunities minority purchas- serve certain thus, closely ers alone” and “more resembles” Policy 26. The FCC’s 1978 Statement of on Mi- university plan admissions struck down in nority Ownership Broadcasting Facilities de- Bakke, "plus rather than a scheme groups recognized having minority factor” fines the See, approved Court in other purposes program contexts. status for of the distress sale 2761-63; 316-19, "Black, Surnamed, Bakke, Hispanic S.Ct. at 438 U.S. as follows: Ameri- Aleut, Agency, Eskimo, Transportation can American Indian and Johnson Asiatic 1455-56, 94 L.Ed.2d American Extraction.” 68 F.C.C.2d at n. 8 analysis). (1987) (under VII Title 309(e) implemented provides, part, upon the FCC dis- Section Since finding applications tress sale eleven the Commission that a licensee has vio- rules, ”[F]ormally designate for license or license renewals were denied lated FCC shall: application hearing the Commission. As of Fiscal Year [of licensee] 11,493 stations, 9,847 ground obtaining noti- FCC licensed broadcast or reasons then and shall See, parties fy applicant which were commercial stations. Federal and all other known action_ Any hearing Re- interest such subse- Communications Commission 53rd Annual port/Fiscal p. quently upon application 36-37. Additional- held such shall be Year 1,489 hearing ly, Report applicant the FCC notes that there are full in which the and all other stations, 5,568 permitted partic- parties translator and booster FM in interest shall be power ipate.” translator and low television stations group community decades to define the constitutional or small two individual improve and are a broadcast license limits on affirmative efforts to ac- that desires acquisition without be- minority groups to finance to the mainstream able cess of ing subsidized. of American life. This case involves a governmental pro- unique type of access argues that the distress The dissent also gram passed by the not heretofore on Su- unduly non- program does not burden sale preme majority’s The Court. invalidation affects a frac- minorities because it ten-year minority of the Commission’s old licenses. percentage tional of broadcast program my impermis- distress sale view argument is a nons- 952. This Dissent at congressional sibly overturns a considered impact regardless of the of tarter because market, judgment appropriate as to the means of program on the entire bur- assuring diversity viewpoint correcting some discrimi- of over hopefully of den pro- casting achieving some national airwaves. off a nation and largely Shurberg in this gramming thoughtfully falls conceived and monitored necessarily every exclude gram attaining legitimate case and will con- aimed at nonminority every individual in distress end, majority gressionally mandated individuals are enti- These burdened sale. applied Supreme rigidly has too Court af- equal protection guaranteed by tled to the guidelines designed firmative action though consti- the Fifth Amendment even types programs, ignored of firm other program have not tutional violations circuit, precedents in this and failed to proportions. yet Su- reached substantial explicit Congress. credit the intent of rights every man are n. 2.28 The pra, rights of one are dimin- when the violated I. The Constitutional Status of ished.29 Minority Government-Sponsored PROGRAMS PREFERENCE Conclusion program Court has United States Shurberg Shurberg deprives Alan thus concerning four consti issued decisions Broadcasting equal protection their voluntary govern tutional limitations on rights under the Fifth Amendment. The pro ment-sponsored affirmative action remedy narrowly tailored to program is not grams. Wygant v. Board Jackson promote program- or to past discrimination 267, 1842, Education, 476 U.S. 106 S.Ct. ming diversity unduly it burdens because (1986); Klutznick, L.Ed.2d 260 Fullilove v. nonminority, innocent and is Shurberg, an 448, 100 2758, 65 L.Ed.2d 902 U.S. reasonably related to the interest (1980); Regents University Cali seeks to vindicate. Bakke, 438 U.S. 98 S.Ct. fornia foregoing join reasons I in the For the (1978); City 57 L.Ed.2d 750 Rich — court, judgment of the Co., -, mond v. Croson U.S. J.A. Shurberg denies (1989).1 102 L.Ed.2d 854 A 109 S.Ct. process protection under the due equal majority squarely of the Court has held Fifth Amendment. clause of the prior discrim that the remediation of sufficiently compelling ination is a interest WALD, Judge, dissenting: Chief preferences. justify the use of racial opinion in Bakke also rec governmental agencies, and Justice Powell’s Congress, struggled nearly ognized compelling the state’s interest have federal courts Metal Workers’ parties 1. See also Local 28 the Sheet stakes to the involved are certain- 28. The Shurberg eventually prevails, EEOC, ly If 106 S.Ct. substantial. Int'l Ass’nv. ap- (1986) (court-ordered will be awarded a license for a station plan he di L.Ed.2d 344 $6,520,000; prevails, praised the FCC Astro- if discrimination); employment United rected at $3,420,000 subsidy preserve and Faith will line Paradise, States v. $3,100,000 salvage from its lost li- Center will (1987) (same). 94 L.Ed.2d 203 cense. Kennedy. President John F. higher education, within the context promoting text of support higher education. use of racial considerations in furthering that interest ... And certainly nothing circuit, moreover, a third in Within this the Court has said today necessarily recognized sufficiently terest has been possibility the that the Court forecloses compelling justify pref the use of racial governmental will other interests find Michigan Broadcasting erences. In West upon which have been relied in the low- FCC, (D.C.Cir.1984), 735 F.2d 601 Co. er courts but which have not been denied, cert. passed on here to be sufficiently “im- (1985), upheld 84 L.Ed.2d 782 this Court the portant” or “compelling” to sustain in comparative licensing proce use of race policies. the use action of affirmative part of dures as the Commission’s effort Wygant, 476 U.S. at 106 S.Ct. at 1853 mix “to obtain a diverse of broadcasters.” J., (O’Connor, (citations concurring) omit- decision, course, That 735 F.2d at 613. ted) added). (emphasis binding precedent except insofar as question by subsequent called into deci Supreme Court’s recent decision in view, Supreme my In sions of the Court.2 imposed stringent requirements Croson broadcasting diversity the identification of governments seeking state and local in- compelling government as a interest is en programs stitute affirmative action for the tirely Supreme prece consonant with Court purpose providing increased economic dent. The has never limited the di Court opportunities Croson, for minorities. how- makeup versity rationale to the of student ever, present differs from the case in two bodies. Nor has it held that there exist First, respects. fundamental in- Croson governmental two interests sufficient the initiative governmen- volved of a local ly compelling justify race-conscious af body, tal while continued enforcement of Indeed, firmative action. Justice Powell’s the policy has been mandated opinion landmark in Bakke itself notes Second, Congress. an ofAct the dis- in separate public three state interests policy sale by Congress tress was intended that, university supported medical school if public to enhance access to diverse broad- record, adequate an could be considered programming goal quite cast that is dif- —a “compelling”: the elimination of identified ferent from that which the Court addressed discrimination, improvement public in Croson. We must therefore bear in services, promotion health and the of stu mind that the limitations in announced body diversity. dent 438 U.S. at applied mechanically decision cannot be at 2757-60. Justice O’Connor Rather, present controversy. we must provided perspective also wider than the carefully analyze objective the distress panel’s for our review of this case: serves, policy sale and the constitutional fit end,

[Although precise bearing its contours are un of the chosen means to that certain, promotion repeated Congress’ a state interest mind authorization and program’s specific of racial has been found suffi endorsement of this “compelling,” goal.3 in the con- ciently at least method Michigan sufficiently compelling in West ante- is a 2. This court’s decision broadcast justify prefer- Wygant state the use of racial interest dated the Court’s decisions in Croson, ences. Michigan West is no and of course longer binding as it conflicts with the insofar strenuously 3. Appellantargued before this court higher pronouncements. I do not be- Court’s case, its own in this did not follow lieve, however, Wygant that either or Croson policy permissi sale rules and exceeded concerning undermines our earlier views apply policy ble limits on its discretion to compelling nature of the state’s interest Indeed, licensing process. granting Faith broadcasting diversity. infra, pp. See 941-43. arrange opportunity to Center a third successive recognize I also that the distress requiring than a renewal a distress sale rather hearing, significant respects acknowledged from the use of differs in its bal licensing comparative minority-owner ancing public race as one element in interest in infra, pp. poli- per proceedings. ship policies against public Both 948-50. interest cies, however, ques- mitting comparative hearings premise was a "close start from the Development op II. diversity hampered by the Distress Polioy dearth minority Sale broadcasters. As a re- sult of the “exhaustively documented” un- publicly proclaimed the FCC4 its derrepresentation in the ownership of mass concept commitment to the of diversifica facilities, media broadcast in ownership tion Michigan, control West media premise F.2d at 603 n. expanded of con the FCC “diversification public good trol is a in a free society.” diversification encompass posi- Policy Comparative Statement on Broad tive attaining effort at minority representa- (1965) cast F.C.C.2d Hearings, broadcasting: tion in Policy Statement The [hereinafter ]. Full minority participation in the owner- upheld Court has the FCC’s own ship management of broadcast facili- ership policies diversification as consistent results in a ties more diverse selection of public with the interest standard and the programming. addition, an increase goal first amendment of promoting diversi in ownership by minorities will inevitably ty viewpoint: enhance the diversity of control of lim- It was not inconsistent with Commu- [the resource, spectrum. ited the 1934,] therefore, nications Act of for the Statement Policy on Minority Owner Commission to conclude that the maxi- ship Broadcasting Facilities, 68 F.C. mum “public benefit to the interest” (1978) C.2d 1978 Poli [hereinafter would from follow allocation of broad- cy The FCC concluded that Statement].5 promote cast so as to licenses diversifica- “[a]dequate representation of minority tion of the mass media as a whole. viewpoints in programming ... enhances ‘public “The ... interest’ standard neces- the programming diversified key is a sarily invites reference to first amend- objective of the Communications and, particular, ment in principles” ... Act of 1934 but also of the First Amend goal the First achieving Amendment ment.” Id. possible “the widest dissemination of in-

formation from diverse and antagonistic In implementing its of diversity of sources.” viewpoint through diversity of ownership, v. FCC Citizens National Committee the designed FCC the distress for Broadcasting ], 436 U.S. [NCCB gram part of a strategy broader (1978) 98 S.Ct. 56 L.Ed.2d 697 dealing with the “extreme disparity be- (citations omitted). representation tween of minorities in The population Commission found our achievement of in broadcasting in- goal viewpoint diversity through dustry.” Policy Statement at 982.6 5, citing tion.” J.A. at Corp. New South Media v. 4. In the Communications Act of 1934 FCC, (D.C.Cir.1982), empowered 685 F.2d 708 and Ashbacker the FCC to allocate broadcast licens- way es nience, such a Corp. "public in as to serve Radio conve- interest, necessity.” or 47 U.S.C. majority 90 L.Ed. 108 Had the conclud- 307(a). § arbitrarily ed that the FCC acted or exceeded its authority authorizing attempt the third at a FCC also reiterated its earlier concern sale, would have it avoided constitu- additionally “diversification ... desirable Indeed, question altogether. tional is hard to government licensing system where cess limits ac- anything fairly set how compelling short of a public use radio and tele- justify repeated postpone- interest could such Statement, Policy supra, vision facilities.” 1978 comparative hearings. ment of (quoting Statement, Ashbacker at 981 394). Policy supra, passing my disagreement I note in with contention, Silberman’s op. see Silberman previously FCC had "[djespite noted that 908 n. that would not be entitled to address approximately fact that minorities constitute question adopt constitutional if I did not percent population, they control fewer position statutory FCC’s Since a issue. percent than one of the 8500 commercial radio majority panel determined currently operating and television stations resolved, question constitutional must be I re- country." Minority Ownership Task- views, my right express my serve whether force, Minority Ownership Broadcasting not I would reached (1978) have the issue the choice if Minority Ownership [hereinafter Task- were mine alone to make. Report (emphasis original). ] force Report, supra, 9, 11. policy only after Lack of broad- It added the distress sale increasing minority approaches casting experience among potential other minori- programming, such as representation ty applicants, an inevitable concomitant of opportunity rules equal employment underrepresentation persistent in the in- policies, had not achieved ascertainment dustry, long also blocked their access. As Id. results. significant impediments entry as these formidable existed, the Taskforce felt that the market previously judges law had Administrative would not self-correct so as to afford ade- competitive award a instructed been quate ownership. opportunities minority applicants in preference to license comparative hearings if the own- Responding Report, to the Taskforce running participate actively would ers directly FCC decided that it must deal appli- pending license the station. Several entry the identified barriers —lack of infor- involving significant minority cations financing. poli- mation and It announced expedited. interest had been gains grant capital cies to tax deferral cer- persisted, Minority underrepresentation selling minority tificates to those firms7 however, Minority Owner- FCC’s qualified and to authorize distress sales to Taskforce, study, careful identi- ship after minority purchasers. designed The FCC impedi- structural fied the cause in several policy distress sale to create an incen- the broadcasting to minority access ments minority-controlled for entities to enter tive facilities. broadcasting field.8 Pursuant to the the policy, designated the licensee for a revoca- Minority Ownership Taskforce con- The hearing applica- or one whose renewal significant most barriers tion cluded that the qualifica- knowledge might jeopardy tion be in on basic minority ownership were lack of could, proceeding sale, largely tion issues instead of nor- up for attributable of stations through hearing process, elect to monopoly mally on such “old-boy an network” ap- information, minority-controlled to a unavailability of ade- sell its station and Through minority plicant price.”9 at a “distress financing potential for own- quate Minority Ownership qualified minority ers. See policy, sale a Taskforce Telecommunications, authority the Commission under 1071 of the ties in § 7. The FCC has the grant tax cer- that it would authorize distress sales Revenue Code to sellers announced Internal long general capital gains partnerships defer taxation on the to limited so tificates to may minority group partner be used as a and transaction. These certificates was a member of proper- enterprise. to induce sales of broadcast The incentives owned more than 20% 1071; minority purpose § owners. See 26 U.S.C. to allow minori ties to of the amendment was (P Rad.Reg. Certificates, necessary & ty entrepreneurs Tax 19 2d Issuance access to the easier (1970). F) Regarding Policy capital. 1831 See Commission Ownership Minority Broad Advancement of policy essentially (1982) is an ad- 8. The distress sale casting, [hereinafter F.C.C.2d general exception rule that ministrative Policy Statement]. qualifications have been once a licensee’s basic began of a consideration the FCC by designation question either a into for policy called of the distress sale further revision hearing, a the licensee revocation or renewal option sale exercise a distress allow a licensee to voluntarily There transfer the license. stage proceeding. See the renewal at a later however, have, exceptions always to this 42,047 (1985). been Fed.Reg. Inquiry, Notice of Nonetheless, bankrupt or disabled licensees. rule for years, past the Commis- six expanded minority policy these ex- sales, distress sale only approved more distress sion has agree ceptions to include licensees who would years. only 38 in ten modest total of for a minority-con- qualified to sell at a discount to purchasers. policy requires trolled the sale distress sale 9.The of the market price no more than 75% reflect By approved 27 dis- the FCC had property license in and value of the broadcast Finding years. con- tress sales four effect of license the deterrent order to retain underrepresentation of minorities was tinued Broadcasting hearings. Lee financing revocation and still still a “serious concern” Nonetheless, (1980). Corp., 76 F.C.C.2d single greatest increased posed obstacle” to "the greater loss if a license prospect even minority participation, the FCC modified gives an economic reviewing the current licensee revoked After distress sale further. price mi- to a at this discount Advisory incentive to sell Committee on recommendations of its buyer. nority Financing Minority Opportuni- Alternative for applicant would obtain special opportuni- other minority prefer- two ty buy price. station a reduced programs. ence Pub.L. No. (1987).11 Stat. 1329 See also H.R.Conf. Congress On several occasions has en- Rep. Cong., 100th (1987). 1st Sess. 504 dorsed diversify the FCC’s efforts to media The Senate Appropriations Committee, through programs control to encourage mi- reported out provision, ex- nority ownership and control.10 For exam- plained: ple, amending the Communications Act in expressed its support 1982 to authorize the employ FCC to lotter- policies such in the past and has comparative ies in lieu of license hearings, found that promoting diversity of owner- Congress specifically provided special ship of properties broadcast satisfies im- ownership media ownership portant public policy goals. Diversity preferences in order encourage diverse in diversity results voices on the airwaves. “The underlying gramming improved service to policy objective mi- preferences of these is to nority and women audiences. promote the diversification of media owner- ship consequent pro- S.Rep. 182, diversification of Cong., 100th (1987) 1st Sess. 76 gramming content. diversity principle This (emphasis added). The discourse at the grounded in the First Amendment.” hearings with then-FCC Chairman Fowler H.R.Conf.Rep. No. Cong., 97th 2d made clear the Committee’s view that “the Sess. Specifically citing the Commission responsibility to make [has] Statement, FCC’s 1978 Policy in which the sure that are used to reflect [the airwaves] FCC announced the of views and policy, the Conference Committee conclud- background and interests in our country.” ed that: Departments Commerce, Justice, State, of important factor in diversifying the Judiciary [An] Agencies Ap- and Related media of mass communications is propriations Fiscal Year 1988: Hear- moting by ownership racial and ings ethnic on H.R. 2763 a Subcommittee Before —groups minorities traditionally the Senate Committee on Appropria- of extremely have been underrepresented tions, Cong., (1987) 100th 1st Sess. 17 ownership of telecommunications (statement fa- of Lautenberg) Senator [herein- cilities and media properties. The policy after 1987 Hearings\ encouraging diversity

of tion of informa- Analysis III. sources is best served not only awarding preferences based on the num- A. Scope Review of properties owned, ber of already but also Whatever its prior stages status at of by assuring and ethnic litigation, this is groups that have been unable to ac- today deliberately congressional chosen quire any significant degree media of policy, legislation embodied passed by provided are an increased the House and signed Senate and by the opportunity to do so. view, President. In my the distress sale added). (emphasis Id. at 43 policy is a constitutional means pursuing

Congress again reaffirmed strong Congress’ its objective: ensuring greater di- support programs for the versity FCC’s foster in programming. As Silber- minority ownership in 1987. In appro- its recognizes, man breadth of “the discretion priations 1988, Congress law for prohibited the choice of vary remedies with the repeal or reconsideration of the nature authority governmental of a 10. "It is the firm intent congressional of the Conferees that 11. The ban on FCC reconsidera- objectives designed traditional Commission programs recently tion of these extended promote the diversification of control of the through year fiscal 1989. See Pub.L. No. 100- incorporated media of mass communications be in the administration of a 459, (1988). 102 Stat. 2216-17 lottery system.” H.R. Conf.Rep. (1982). Cong., No. 97th 2d Sess. 40 n. Fullilove, doing unless so would result in manifest body.” J., (Powell, statutory n. 14 injustice at 2798-94 or there is direction or op. at 912. concurring).12 See Silberman Brad- legislative history contrary.” the distress sale my view that It is clear ley City v. School Board Rich- this controver- place remains in mond, —and a direct our court —as sy remains before also See 40 L.Ed.2d 476 by Congress. legislation enacted result of Thompson Sawyer, 678 F.2d suggests Although Judge Silberman (D.C.Cir.1982). The fact the statute given the re- legislation need not be superseded this court’s remand order is of Congress, ordinarily owed to Acts of spect consequence: clearly no it is within the unconvincing.13 position his power judicial to overrule deci- Noting that the 1987 statute forbade sions, statutory sphere, at least within sale to reexamine the distress Commission precedent judicial and this “nullification” of precluded compliance with policy, and thus infringement constitute an on the does not order, Judge Silber- previous our remand jurisdiction. court’s impermissi- suggests that the statute man statutory change Nor did the work the court jurisdiction bly constricted unjust surprise parties to this case. op. n. Silberman at 925 appeals. change applicable The 1987 statute did however, statute, nothing says 39. The law, agency’s prior since it eliminated the simply directs jurisdiction: about abrogate modify discretion to or the dis- law to apply particular rule of agency to not, policy. tress The statute did how- Congress plainly has it. disputes before ever, Shurberg require rights that the rules to power to establish substantive adjudicated be on the basis of Astroline agency adjudications; more applied in be which were unforeseen at the standards over, rule Congress may insist that a new contrary, dispute began. To the time this pending dispute. See Mul applied to a required only terms the law its Communications, Inc. v. ti-State apply preexisting agency continue to (D.C.Cir.1984).14 princi This 728 F.2d 1519 me that rules. It therefore seems clear to application to administra ple simply application of not a case in which the this is general the more rule that agencies tive pending proceeding will a new statute to body apply the law adjudicative an “is decision, injustice” litigants. “manifest its create at the time it renders effect dispositive, congressional judgment it is not application this case is of Fullilove to 12. The Congress surely has far makes a difference. complicated the fact that in Fullilove—as powers does an administrative broader than opinion Wygant commanded a and Bakke —no great- agency; findings entitled to of fact are rely principally on majority Court. and, agency, respect; it need er unlike Burger’s opinion, joined Jus- Chief Justice opinion. compile Moreover, issue an a formal record or The Chief Justice’s Powell and White. tices fourteenth amend- section 5 of the ground occupied opinion plainly a middle be- authority Congress with the entrusts ment Brennan, Mar- position of Justices tween the shall, protection guarantees. These implement equal Blackmun, fairly def- who announced and judicial re- the need for factors do not obviate view, of affirmative ac- standards for review erential they shape of our the contours but do generally, programs and that of Justices tion inquiry. Stevens, Stewart, Rehnquist, who would program. struck down the MBE have evidently Congress 14.Although aware was sug- Shurberg’s complaint, is no pending there Judge accepts the MacKinnon 13. I note Shurberg singled unfa- out for gestion that was program repre- premise the distress sale congressional ac- or that the vorable treatment congressional policy choice. considered sents a against par- any sense a vendetta tion was in op. See MacKinnon at 932-33. plainly dis- This case is thus ticular individual. not, Publishing, Congress Inc. tinguishable does America has acted from News The fact that course, (D.C.Cir.1988), which ipso F.2d 800 mean that the distress Hollings colleagues strikes My are correct Amendment “[t]he stressed that constitutional. facto precision of a laser beam” Congress asserting Act Murdoch with that even an America were and News searching scrutiny that "Murdoch subject when constitution- congressional ac- ‘catalysts’ op. than mere implicated. Silberman more are al values 923-24; 814, 815. particular Id. at at a evil.” while tion aimed op. But at 932-33. MacKinnon argues required. Rather, also Silberman that Con deliberativeness must be gress presumed long did not devote sufficient Congress attention to so had before problem, legislative it sufficient information for histo the formation ry adequate opinion.16 reveal an of a considered fails to factual basis The distress sale course, Fullilove, policy, of legislature’s place for the action. had been in for over however, years nine quite clearly rejected Congress pre- when the notion acted to hardly serve it: it can may inquire that courts into the be doubted that sufficiency Congress had access to a congressional sufficient store of deliberations. As Justice information rendering for the out, of a con- pointed Stevens’ dissent that case judgment.17 sidered Given this factual provisions the set-aside were mentioned background, my colleague’s refusal to re- neither the House nor the Senate commit gard the statute as a congres- considered reports; Congress tee on the floor of “only simply judicial sional choice is presumptive- legislators spoke a handful of and there Moreover, ness. directly runs counter to virtually Fullilove, no debate.” precedent. circuit In Treasury National n.25, U.S. at S.Ct. at 2811- Devine, Employees Union v. 733 F.2d 114 (Stevens, J., dissenting).15 and n.25 (D.C.Cir.1984),we appropria- considered an uphold Those Justices who voted to provided tions measure which that no fed- program did not contest Justice Stevens’ eral expended funds could be imple- for the congressional assertion that debate had mentation of certain Office of Personnel scanty. Burger’s opin been Chief Justice Management regulations. holding course, “Congress, ion noted that may regulations barred, to be we stated: legislate compiling without the kind of It is true that courts must cautiously act appropriate respect judicial ‘record’ measures, interpreting appropriations proceedings.” or administrative Id. at inferring to avoid substantive effects at 2774. See also id. at However, that were never intended. (Powell, J., concurring) S.Ct. at 2787 suggested Court has never (“The creation of national rules for the principle of statutory construction governance society simply of our does not should be rigid transformed into a consti- concept entail the same recordmaking mandate, requiring tutional courts to appropriate judicial that is to a or adminis qualitative make a determination wheth- proceeding.... trative After given er each house has a measure legislated repeatedly in an area of na suffi- cient voting consideration before in fa- concern, gain tional its Members experi vor of it. Such an intrusion into Con- ence that reduce the need for fresh gress’ legislative deliberations would hearings prolonged debate when Con pose serious separation-of-powers prob- gress again area”); considers action in that lems, and language logic neither the nor n.4, (Mar id. at 520 2796 n.4 compels of the Constitution such an in- shall, J., concurring judgment). in quiry. clear thrust of is that evidence Fullilove of (such congressional deliberation as commit (emphasis 733 F.2d at 117 n. original) in reports debate) (citation lengthy omitted). tee or floor is not fact, Judge approach, making process Congress Silberman’s in is strik- of and invalidate laws ingly "inadequate” similar to that paid. of Justice Stevens in Fulli- to which attention has been approach love. Since Justice Stevens’ was ac- 17.Moreover, Congress cepted by Court, years Supreme had acted no other member of the some previously prefer- powerless adopt to mandate the use we are it here. of racial lottery system. ences within the FCC’s I do not lottery 16. One has written that "[b]ecause commentator contend that the mechanism is constitu- [legislators] representatives tionally indistinguishable are the direct of from the distress sale Both, however, people, imposes program. depend the law no restrictions on them on the same respect premises: programming their use nonuse of facts as a core that a station’s Davis, legislating.” significantly by basis for Facts in Lawmak- will be owner, affected the race of its (1980). ing, public 80 Colum.L.Rev. 931 And and that the interest diverse authority propo- programming by Silberman has cited no for the is served measures which in- heterogeneity sition that a court scrutinize the decision- crease of broadcast licensees. sufficiently compelling justify program was man- the use of the distress sale Since preferences: remedying past congressional discrim- by a considered dated Supreme enhancing choice, diversity higher Court’s ination I believe Moreover, governmental rele- is of limited education. in- recent decision Croson dispute. the six terest asserted here—the desire present Of to ensure vance to the majori- that television viewers have access to a comprised who Croson Justices range express programming distinction be- diverse four drew an ty, —seems analogous powers closely to the educational inter- expansive tween powers of state and est with Justice Powell found sufficient in the more limited 109 S.Ct. at 719 Bakke. governments. local See O’Connor, J.) (“That Congress (Opinion of question presented here—whether the effects of

may identify and redress government’s interest educational does not mean society-wide discrimination closely analogous to its interest that, politi- and their fortiori, the States a preserving public variety access to a that such are free to decide cal subdivisions question admittedly broadcast fare —is on (Sca- at 736 appropriate”); are id. remedies people may which reasonable differ. And lia, J., (“[I]t thing to concurring) is one ,.rt question it is a Co by Feder- racially based conduct permit provide has thus far failed to a definitive legislative powers al Government —whose not, however, open ques- answer. It is an explicitly concerning matters of race were express- tion within this circuit. This court Amendment, by the Fourteenth enhanced analogy in ly approved Michigan, West Const., quite 5—and Arndt. see U.S. § stating “[j]ust FCC rests precise entities permit it another goal attaining programming diverse in matters of race against whose conduct the First Amendment value ‘that the wid- directed, specifically that Amendment possible est dissemination of information is 14, 1”). That distinction was see Amdt. § public,’ essential to the welfare of the Jus- hardly a new innovation: Fullilove recognized universi- tice Powell state different the distinctions between stressed support find in the First Amend- ty could emphasized public institutions goal attaining for the a diverse ment powers remedial Congress may exercise (cita- body_” 735 F.2d at 614 student denied to other scope that would be omitted). The law within this circuit tion Bakke, 438 U.S. at actor. also state diversity, like that broadcaster Powell, J.) (Opinion of 98 S.Ct. at 2758 higher edu- public within institutions (“isolated governmen- segments of our vast cation, compelling govern- sufficiently is a competent are not to make tal structures justify the use of racial mental interest decisions, in the absence of those at least legit- precedent may preferences. This legislatively de- legislative mandates and only if has been imately disregarded criteria”); Hampton v. Mow termined cf. by subsequent decisions of the undermined 1895, 48 Wong, 426 U.S. Sun Supreme Court. L.Ed.2d 495 Wygant Judge Silberman contends authority of Michi- undermines the West Policy as a Means B. The Distress Sale Wygant in his view the Court gan, since Diversity Program- Increasing theory offered rejected the “role model” ming Sil- the Board of Education. See Jackson Compelling Nature the State 1. The however, of fact, only op. at 922. berman Interest role Wygant rejected the four Justices theory; White’s concurrence has model Justice point the Court To this the exclusively the fact that governmental interests that focused two identified four layoffs.18 of the circumstances, plan involved One may, appropriate under blacks, a shown to be of whom has been le- none that the “[w]hatever Justice White stated 18. discrimination, be, quite hiring goals quotas the is gitimacy racial of victim of discharge room for of white teachers make Croson) goal if providing only of its beneficiaries also cautioned are “[t]he by the models’ discussed courts below ‘role past themselves victims of discrimination. very confused with the dif- should not be Though implausible reading that is not an promoting diversity goal of racial ferent language,20 of Justice I O’Connor’s do not n.*, faculty.” 476 at 288 among the opinion compels believe that her Croson O’Connor, (Opinion 1854 n.* of 106 S.Ct. at diversity-oriented the invalidation of af- J.). distinction is central here. The same programs. firmative action Given Justice policy rests on the as- The distress sale apparent approval O’Connor’s of Justice sumption that viewers listeners of ev- diversity in Wygant Powell’s rationale her will from access to a ery race benefit concurrence, see 476 U.S. at fare, range of broadcast not that broader 1853,1 conclude, am hesitant to based on inevitably gravitate will to- consumers brief, ambiguous reference in a in- case disseminated licen- programming wards volving quite plan, different that she has own race. sees of their entirely.21 now abandoned that rationale Judge suggests also Silberman plurality Even if I read the Croson as rejected pursuit of Court Croson eliminating diversity per- rationale as a diversity permissible justification as a justification missible for state and local af- programs. My action affirmative col- programs, firmative action I would con- league heavily plurali- relies Croson ap- clude that the same restrictions should ty’s preferences insistence that ply Congress. plurality’s recogni- “strictly reserved for remedial should be (Opinion settings.” powers 109 S.Ct. at 721 of tion of broad remedial of Con- O’Connor, J.);19 op. at 920. see Silberman gress particular, recognition —in course, underrepresentation Of of mi- “Congress may identify and redress the broadcasting industry, norities within discrimination,” effects of society-wide see resulting diversity pro- of and the lack against any 109 S.Ct. at 719—militates past gramming, is the result of racial dis- easy transference of the limitations deemed promote crimination. The effort to diversi- appropriate for state and local entities. thus, sense, ty important in an an effort Because the directly Croson Court did not remedy past effects of discrimina- permissibility diversity address the say diversity goal is the tion. To rationale, and because that case dealt with policy simply say the distress sale powers government the remedial of a local (who public beneficiary the intended is the authority Congress, rather than with the exposure range to a profit will from wider I requires do not believe that Croson than programming) rather rejection of the federal interest asserted (who gain himself will in- broadcaster here. opportunities). Judge economic creased Certainly the power state lacks the premise is that a can Silberman’s (as day-to-day that term is used exercise be deemed “remedial” control over the matter.” 476 U.S. at 106 S.Ct. at an element different would be rendered un- Moreover, constitutional. all nine Justices in agreed Rights Bakke that Title VI of the Civil Act 2000d, imposes 42 U.S.C. § in Croson that racial classifica- restrictions 19. The statement "strictly stringent tions should be reserved for remedial at least as as those established Bakke, 286-87, settings," represents the view Constitution. See U.S. at id. holding Powell, J.); (Opinion four Justices and is therefore not a S.Ct. at 2746 of the Court. (Opinion 98 S.Ct. at 2767-73 of Bren- id. nan, White, Marshall, Blackmun, JJ.); Stevens, Stevens, J.). acknowledge (Opinion I must that Justice like 98 S.Ct. at 2812 Silberman, therefore, Judge appears prohibition, to read Justice O'Con- Silberman’s would rejecting opinion perforce apply private nor’s rationale. to all universities which (Stevens, J., hesitate, n. 1 concur- See 109 S.Ct. at 730 & receive federal funds. ever, how- would ring). sweeping change to infer such a law governing university policies based admissions Croson, ambiguous plurali- a few in a 21. Under view of all on words of dicta Silberman’s by public ty opinion. as consideration of race universities

943 course, say that has a Of to private broadcast- of gramming decisions power supervisory enhancing in legitimate federal interest broadcast But the ers. quite ex- broadcasting nevertheless mean, is diversity ipso facto, over does not fact, power greater, in than tensive—far sufficiently compel- interest is the state’s A industry. federal the construction over prefer- ling justify to the use of a racial of Con- the directives pursuant to agency, recognize that Justice Pow- ence. And authority to determine has the sole gress, on the distinc- opinion focused ell’s Bakke operate a broad- may may who not who of the academic envi- tive characteristics the precisely because facility. And cast who are fortunate ronment. For those relatively unfettered enjoy will broadcaster college university, enough attend a to opera- commences once his station freedom a with fellow students be interaction right the tions, government has both the information principal means of access to initial care in the duty to the exercise But who lack the the world.22 those about I think it is license. to award a decision background pursue a or the resources the choosing licensees that in law settled largely university may be de- education First further “the may seek to state media to ex- pendent upon the broadcast achieving ‘the goal of widest Amendment beyond and ideas pose them to influences from of information possible dissemination ” experience. The sphere of their immediate FCC antagonistic sources.’ diverse ensuring peo- in that all its state’s interest Committee National Citizens v. range to a wide and varied ple have access 775, 795, (NCCB), 436 U.S. Broadcasting to me to be options seems of broadcast 2096, 2112, (1978) L.Ed.2d 697 56 S.Ct. 98 compelling as its interest every v. Press United bit Associated (quoting 1424, 1416, 1, 20, States, body 65 S.Ct. within a creating diverse student a (1945)). also 2013 L.Ed. public university.23 89 California, Voters League Women of open question an within Even if this were 3116, 3106, 377, S.Ct. U.S. circuit, I would therefore conclude the ... (1984) (“Congress may L.Ed.2d diversity ais promotion of broadcast the public the receives to assure that seek interest, an inter- governmental compelling presenta- a through this medium balanced analogous to the enhancement closely est public importance on issues tion the institu- diversity within educational addressed”); Red might not otherwise good or state. For operated the tions FCC, 395 U.S. Broadcasting v.Co. Lion polity ill, large portion of American L.Ed.2d 371 89 S.Ct. princi- as a upon the media relies broadcast places limits Certainly the Constitution world of information about pal source Congress may use methods which governmen- Given they live. which broadcasting diversity within enhance licensees, I selecting broadcast role tal govern- legitimacy But the media. responsibility bears a the state believe that interest undeniable. ment’s special however, concern not, freedom is therefore university a self-contained A22. Amendment_ future de- The Nation’s University have access to students First world: (and through expo- cable range fare often to wide pends upon of broadcast trained same leaders gener- public services) exchange which is available which of ideas robust sure to that university compelling interest ally. tongues, If the of a multitude truth 'out discovers exposing to diverse ideas addition students through any of authoritative kind than [rather] citizenry at which are to those available Press, 52 selection,’ Associated States v. United how the state could large, hard to see then it is to Associated F.Supp. 372.” citation ensuring weighty a less interest have regulation justified antitrust Press—which university facilities. lack for those who access diversity— enhancing print as a means of media saw a connection suggests the Court at least Regents, Keyishian v. Board promote government’s efforts between L.Ed.2d class- opinion outside inside and deeply (1967), Nation is "Our the Court stated: passage from quoted this Powell room. Justice safeguarding freedom academic committed atU.S. opinion. See 438 Keyishian in his Bakke to all of value us is of transcendent at 2759. That merely concerned. to the teachers way to allocate franchises in such a interest, as to compelling justify sufficient to ability further the of viewers and listeners careful use preferences, of racial in encour- to obtain access to diverse programming. aging the dissemination of pro- broadcast suggest do not gramming broadcast licensees which reflects the nation’s diver- precisely stand the same sity. relation This compelled view is by circuit FCC as students or teachers precedent stand to the and is fully consonant with the public university. administrators of a I do decisions of the Court. Commission, believe that the selecting interest, licensees who public will serve the 2. The Nexus Ownership Between responsive must ultimately be to concerns Programming which are in the truest sense educational. Judge Silberman is openly skeptical apples Silberman mixes and or- about the effectiveness policy anges claiming that the FCC’s abandon- addresses viewpoint or diver- ment of the fairness doctrine indicates that through broadening sification or enhancement on air- course, control of the media. Of there longer waves is no a compelling interest. no guarantee that minority ownership and op.

See Silberman at 921. The fairness management will necessarily lead to minor- doctrine, merits, whatever its quite dis- ity-oriented programming or even to the tinguishable policy: from distress sale expression of a minority viewpoint discrete the fairness doctrine involved direct control on the airwaves. Similarly, there is no over the programming. content The dis- guarantee that minority students will inter- contrast, by tress sale policy, seeks to di- mingle nonminority students or ex- versify programming indirectly through a change viewpoints in state university, targeting limited opportunities. license even particular minority students The FCC did not abandon the doc- fairness admitted will have typical or distinct “mi- trine because it believed fostering de- nority” viewpoints. Bakke, 438 U.S. at Cf. bate on issues public controversial im- 311-13, 98 S.Ct. at 2759-60. These are portance part mission, was not of its but predictive judgments a sort which sim- rather because it considered the means ply not lend do themselves to ironclad involved to be content-based control of proof. It entirely foreseeable, seems to me speech.24 The raises however, that minority broadcasters —like no such concerns.25 per- students —will have distinct

I cannot accept my colleague’s denigra- spectives convey. And it seems equally tion of the state interest involved here. In foreseeable that perspectives these will my opinion government clearly expression has a find program- the licensee’s In its decision eliminate the clearly fairness doc- regula doctrine is ness a content-based trine, principally the Commission was motivat- speech. tion of broadcast Neither that order concerning ed its doubts the doctrine’s effec- nor this question reconsideration calls into tiveness, legitimacy doubts as to the content-neutral, constitutionality of our struc governmental efforts to enhance broadcast di- regulations designed promote tural diversity." versity. The Commission stated that "under the Syracuse (Reconsideration), Peace Council 3 FCC Lion, standard of set review forth in Red (1988) (citation omitted). Rcd. 2041 n. 56 governmental regulation such as the fairness doctrine is para- My colleague’s constitutional abroga- reliance the FCC's if furthers public receiving mount interest diverse tion of ignores the fairness doctrine also the fact antagonistic sources Under has acted in this case. The statu- of information. Lion, however, constitutionality Red tory requirement that the distress sale be questionable fairness doctrine becomes if the congressional continued reflects determina- chilling resulting effect from the doctrine public tion that the need for purpose." Syracuse thwarts its intended Peace gramming protection. still warrants affirmative Council, (1987) (empha- 2 F.C.C.Rcd. If were in there fact a contradiction between added). sis discontinuation of the doctrine fairness and the denying policy, reconsideration of its order abro- decision to maintain the distress sale doctrine, gating the plainly required give fairness Commission prece- court would order, August stated: “As noted in the congressional judgment. the fair- dence to the

945 respect fluential with to editorial comment ming decisions.26 9, presentation news.” 495 and the TV un- nexus ownership-programming principles at 938. I believe that these F.2d not, policy does derlying the today. remain valid alone, assumptions however, on such rest Congress’ conclusions about the nexus judi- congressional, on decades but two 1968, minority ownership program- and between the findings. Back agency cial and however, diversity, sig- ming are the most announced: Commission Kerner nificant, for, as the Court has the from report write and The media us, showing necessary to instructed the world. of a white man’s standpoint support an affirmative action de- of life difficulties ghetto, the ills of the part competence on pends the burning sense there, Negro’s the making finding. As governmental unit the conveyed. Slights seldom grievance, are 1982, Congress recognized mi- early the as Negro’s the part are indignities and nexus, nority-ownership/diversity from life, them come many and daily policy. sale H.R. for the distress basis press” the “white he now calls what —a Cong., 40 Conf.Rep. No. 97th 2d Sess. unconsciously if repeatedly, press (1982)(“[t]he repeated- nexus has been ... biases, paternalism, reflects authorizing lottery In ly recognized”). This America. of white indifference among qualified choosing system for understandable, it is not excusa- but be Congress di- applicants, license broadcast mission has the institution that in an ble minority- implement a rected FCC to of our the whole and educate to inform ap- so that “this ownership preference, society. through such enhancing diversity proach to Advisory Commis- the National Report of means will turn broaden structural (1968). Nine 203 Disorders on Civil sion type and of information nature later, Commission the United States years public.” Id. gramming disseminated the Kerner Com- Rights endorsed on Civil at 43. domi- medium “that a mass mission’s view ultimately fail in its will even clear- Congress spoke nated whites more with an audience pol- communicate attempts addressing directly sale ly, 27 Con- proposed that includes blacks.” The FCC had icy itself. designed to elicit study “one-time gress a also court have of this decisions Several determine whether empirical evidence to belief on the reasonable premised been minority/female nexus there between ex ownership can be encouraging diversity as re- viewpoint ownership program promote pected to 1987 by the Constitution....” quired supra; See, Michigan, ming. e.g., West (statement of Com- at 77 (D.C.Cir. supra, Hearings, FCC, F.2d 1056 513 v. Garrett response Fowler). Congress’ FCC, F.2d 929 missioner 495 v. 1975); Inc. TV unwarranted; study was further denied, (D.C.Cir.1973),cert. ownership and (1974); tie between 42 L.Ed.2d Citi sufficiently diversity was programming Center zens Communications constitutionality of support the strong to clarified, 463 (D.C.Cir.1971), F.2d “The committee policy. sale Indeed, the distress we have (D.C.Cir.1972). F.2d 822 inquiry is unwarranted.... public ownership that believes upon “it is held that ownership results Diversity of respect primary reliance places 182, 100th S.Rep. No. programming.” content, his of and that to diversification (1987). The Act itself Cong., 1st Sess. in- significantly torically proven be Rights, on Civil broadcasting States Commission 27. United is not limited 26. The nexus Mi- Dressing Set: Women context, in other com Window has been documented but See, (1977). e.g., Media industries as well. in Television 2 munications norities Society, 60 a Free Amendment First and the (1972) (stating that Geo.L.J. affecting content key news variable is the newspaper). of a editorial said “none of appropriated the funds pendent on evidence which simply will not shall used ... ... continue a reexami- be available until minority ownership of nation” of the distress policy. Pub.L. broadcast stations has increased substan- No. tially. Stat.

Judge Silberman fails give congres- Judge Silberman fails well to take sional judgment its due. He dismisses the account of the first amendment limits episode entire with the cryptic note that the placed upon Congress and the which FCC ended its reconsideration “without is- preclude more direct efforts to enhance conclusions,” suing any claiming that the program diversity. Although the Commis- inquiry aborted casts on the causal doubt sion cannot control directly the variety of link between increased minority ownership programming that pub- licensees afford the programming and diversity. op. Silberman lic, Judge Silberman nonetheless insists at 907. fails to see He the forest: Con- that the constitutionality congres- of this gress terminated the inquiry because it sionally policy mandated requires demon- firmly concluded for itself that the connec- proof strable of the connection between tion was there and no for need Commission ownership and programming. Congress is existed.28 reconsideration between a and a rock hard place: it cannot under the first directly amendment ensure supporting findings evidence these a certain programming kind of viewpoint typically been rather anecdotal than diversity, yet panel overturns its entire- statistical. Report, Fairness Cf. ly reasonable efforts diversity aimed (1985) (FCC’s F.C.C.2d 143 belief that the proof want of they will definitely pro- fairness justified doctrine chilled is speech duce anticipated results.29 by reference to anecdotal rather than sta evidence). tistical part In this is because I also do not believe that the distress sale subject does not lend itself quantifi policy is rendered invalid by- the fact that part, though, cation. In it is because the participating minority broadcasters are not dearth minority broadcasters has made required prove they are individual quite it empirical difficult to draw conclu prior victims of discrimination. See Silber- concerning sions the programming offered op. man at 915-16. Three Justices Cro- by minority-owned Judge stations. Silber- son did stress desirability of such fine- approach man’s to the places case Con tuning, see 109 (Opinion S.Ct. at 718 gress bind; impossible in an O’Connor,J.), makes the but in no case majority has a policy’s constitutionality sale de- of the Court held that individualized consid- Clearly Congress had a sufficient basis original congressional Since the ban on reex- minority belief ownership increased amination policy, of the distress sale the Con- broadcasting gressional facilities will Research enhance Service has released a re- port programming. supports In Commission con- conclusion that a nexus minority exists pro- cluded between pro- diversification "that in the areas of gramming. Minority gramming See ownership legitimate public Broadcast Station in- — Ownership Programming: and Broadcast objectives Is terest of this Commission—can be (Congressional There a Nexus? Research Ser- developed fully more through encourage- our 1988). vice Hollings Senator relied on this re- minority ownership ment prop- of broadcast port successfully arguing for a reenactment erties,” Policy Statement 981. Four appropriations Cong. ban. See Rec. years later, recognizing ever-present "the ‘dearth (daily 1988). July ed. S10.021 minority ownership’ in the telecommunica- concern,” industry tions to be a serious it re- "balancing 29. Because First various Amend- expanded affirmed and policy ment interests involved in the broadcast media minority and other ownership-oriented policies. great delicacy ... is a difficulty,” task of Policy See Statement at Silber- Broadcasting System, Columbia Inc. v. Demo- heavily man relies on the Commission’s recent Committee, 94, 102, cratic Nat'l concerning doubts the existence of the nexus. (1973), Judge 36 L.Ed.2d 772 Silber- op. Silberman (citing at 921 FCC’s Steele Congress' man’s clearly belittlement of ex- Brief). conflicting Given the existence of views pressed inappropriate. mandate particularly is agency, within the plainly it was circumstances, within the Under such "we must afford competence Congress great weight find nexus to the decisions of exists. experience of the Commission.” Id. event, clearly meets the test of such “narrow tailor- eration required.30 has, inapplicable ing.” requirement years, experi- seems The FCC over the the distress sale present case. Since mented with several devices to further enhanc- intended to serve as a method of gram diversification directly regu- without as a means of ing broadcast lating programming content. The distress —not redressing injuries done to the adopted only specific after themselves —it does not seem broadcasters findings by the equal employ- FCC that germane whether the individu- particularly opportunity ment and ascertain- rules31 awarded a license can establish al who is ment alone were insufficient policies32 specific discrimi- has suffered from that he significant accomplish partic- affirm- natory Any requirement acts. ipation The Commis- programming.33 benefits plans action bestow their ative sion found that the market was neither victims is those who are themselves willing provide necessary able nor the Congress’ justifi- inapplicable therefore degree of programming.34 policy. sale cation for the distress poli- therefore believe distress sale satisfies the Croson Court’s cy require- fact, minority owner- promotion In the of program diversity preferences employed ment that racial be ship approach as an represented of court-ordered race-con- in the broadcast media.” 1978 Poli- 30. In the context relief, Statement, (footnotes omitted). Supreme cy supra, of the Court scious six members at 980 agreed "preferential that relief bene- in Local 28 fiting are not the actual vic- individuals who showing FCC cited that audi- 34.The research required. discrimination” tims of survey systematically ence data tends to under- U.S. at 106 S.Ct. at 3053. Spanish-speaking estimate black or audiences report adequate- and measure and often fails to praised has the FCC’s 31. The Court ly listening Minority their habits. See Owner- way minority employment as a of efforts in (1978). ship Report at 22-24 “The Taskforce diversity. accomplishing programming "The subjecting rating services have been accused of Commission Federal Communications gross prejudices generaliza- ethnic media to dealing employ- adopted regulations the with traced, problem large tions. This has been regu- regulatees_ practices its These ment of part, to the absence of minorities in decision- justified necessary to enable lations can be making positions advertising agencies or satisfy obligation under the Com- the FCC to its major corporate Id. at 25. In the advertisers.” that its Act of 1934 ... to ensure munications doubts, Judge light of the FCC’s own Silber- fairly programming reflects tastes licensees’ response owner's man’s reliance on a station minority groups.” viewpoints NAACPv. of marketplace of the to ensure diver- the demands FPC, 670 n. unconvincing. sity, op. at see Silberman omitted). (1976) (citations n. 48 L.Ed.2d 284 Report rejected Taskforce such re- The FCC's policy required The FCC’s "ascertainment” unacceptable liance as in view of its community leaders and licensees to contact mandate. general public, specifically in- members underrepresentation of minorities Acute women, cluding infor- to obtain minorities properties among the owners of broadcast community so as to mation about interests it is the licensee who is troublesome because responsive present programming to those inter- identifying ultimately responsible and serv- Community Prob- ests. See Ascertainment of ing or her audi- needs and interests his Applicants, F.C.C.2d 418 Broadcast lems (1976). encouraged to minorities are ence. Unless dismantling part a conscious As the commercial enter the mainstream of regulations re- command and control —actions business, propor- broadcasting a substantial specific quiring conduct licensees—the citizenry remain under-served tion of our will recently cut back on ascertainment has more nonminority larger, audience will be and the Honig, requirements. Its Fluc- See The FCCand deprived of the views of minorities. Minority Ownership tuating Commitment supra, Minority Ownership Report, Taskforce Facilities, 27 How.L.J. Broadcast added). Judge Silberman (emphasis While rulemakings past deregulatory cites the support proposition market that decade to announcing policy, to create diverse are sufficient forces now “[wjhile broadcasting FCC concluded that (citing op. at 922-23 gramming, see Silberman responded positively industry has on the whole Brief), rule- of the cited Steele none the FCC’s obligations and has made to its ascertainment significant revisit, ques- directly makings tion, call into let alone practices, employment strides its explicit findings of the Commission compelled to observe that the views of we are rulings. minority ownership inadequately its continue to be racial minorities only after race-neutral methods have been lieve that the record fully supports that Croson, congressional wanting. found determination. S.Ct. at 728; see also Silberman op. at 915. 3. The Significance Racial Diversity history The of the FCC’s efforts in this problematic most feature of the dis- field thus demonstrates the distress tress sale lies in the fact adopted sale only after other solely benefits are bestowed upon proven means had unsuccessful in enhanc- buyers. The distress sale policy is not a ing minority access to the mass media.35 setaside: pre-determined no number of sta- Despite equivocation the FCC’s recent tions is reserved exclusively for minority about the effectiveness of the distress ownership. It must nevertheless be ac- knowledged policy, equivocated has not distress sales all reserve cer- opportunities tain to minority purchasers directly but has mandated the Com- alone, and that approval Commission’s mission stay twenty years, the course. For rejection proposed of a sale will be made moreover, (neither no one the Commission without considering qualifications nor the Congress) courts nor doubted the nonminority competitors. plan there- ownership-program- reasonableness fore more closely resembles the admissions Now, ming connection. the Commission36 Bakke, struck down in rather my colleague entertain second Plan, than the Harvard approvingly noted thoughts proof. and want more Congress, in Justice opinion, Powell’s which provided however, remains steadfast its belief that minority status would be an advantage that the nexus between diverse ownership but would not be an requirement absolute exists, and programming diverse and I be- any admissions Judge slot.37 Silberman 35.Judge argues proliferation Silberman the that Profile, 1976) (Spring Violence 26 J.Comm. technologies 176). of new media outlets and at obviates "scarcity spectrum” the traditional of the ratio- fact, appear In it would that the Commis- supported nale that the FCC’s sion’s doubts have been Judge short-lived. As gramming policies. op. See Silberman at 921. acknowledges, Silberman op. see Silberman at assuming validity argument, Even some to its 11, the brief in FCC’s Winter Park Communica- majority grips never comes to with the fail- tions v. Cir., (D.C. Nos. 85-1755 and 85-1756 ure of numbers of sheer media alone to affect argued 1988), supports Nov. the contin- the structural barriers minority to increased minority preferences ued use of within the ownership of properties. broadcast We know comparative FCC’s licensing procedures. Cer- already operate just these that same barriers tainly the comparative use of race in hearings is acutely they in cable and other media as do in distinguishable case; present from the and it is Underrepresentation radio and television. Commission, not clear given whether the if minority programming by choice, voices in is not cured policy. would retain the sale greater however, policies, numbers of mass varieties media if Both presume a connection they continue to be nonminority controlled programming between content and the race of a Hammond, enterprises. owner; It, given See Now station You See the Commission's stance in Park, Now Minority Ownership appear You Don't: Winter it would in an “Un- that FCC now regulated" Place, believes that light the nexus VideoMarket exists. In 32 Cath.U.L.Rev. of the most Underrepresentation pronouncements, Commission’s recent minority Silberman's reliance on the FCC's particularly views in television earlier is trou- Steele, 921, 922-23, brief in see bling. lives, op. Silberman impact daily on our television appears imprudent. children, unquestiona- of our those is bly greater print than that of media. 37. This principal is also the distinction between print, require Unlike television does not litera- the distress compara- and the FCC’s movies, cy. Unlike is television "free” ... licensing procedures. tive Michigan The West theater, always running. and it is Unlike emphasized court comparative hearings that in- concerts, movies, churches, and even tele- volve "a consideration of status as but require mobility. vision does not It comes competitive one ain multi-factor selec- factor into the home reaches individuals direct- system tion designed to obtain a diverse ly. virtually With its access unlimited from mix of (empha- broadcasters.” 735 F.2d grave, precedes cradle to ing television both read- stated, however, original). sis in The court and, increasingly, preempts it. giving special weight "[i]n we [this] factor[ ] Rights, United States Commission on Civil Win- way imply in no be essential to [it] would Dressing-on (1979) dow Update the Set: An constitutionality government of a affirma- Gross, (quoting Living & Gerber With program." Television: tive action Id. at 614. suggested, however, judgment. No Justice this factor alone is sufficient suggests that believe, Wygant plan could be invalidated program. I do not to invalidate solely ground employed require governing precedents though, that portion numerical formula to determine the this result. teaching of the staff to be reserved for with, begin it should be noted that To involving minorities. In more recent cases Powell was member Justice specific remedies for court-ordered discrim- perceived who a constitutional Court Bakke inatory practices, upheld the Court has an affirmative action distinction between quotas of numerical where severe use less specified plan which reserved a number of steps proven unavailing. supra have plan candidates and a slots for 934 n. 1. employed plus-factor race as a which decisions, light subsequent I read decisions. The other four Jus- admissions hold, most, that an affirmative Bakke ques- who reached the constitutional tices plan “plus-factor” ap- action which uses a consti- expressly denied that such tion reserving proach preferable plan to a Bakke, 438 tutional distinction exists. See minorities, specified opportunities for if (Opinion at 2793 U.S. at plans equally two will be effective in Marshall, Blackmun, Brennan, White, achieving goals. their remedial In the Furthermore, JJ.). subsequent decisions case, however, present I believe that there it clear that Supreme Court have made ample grounds concluding are that a prohibit every does not the Constitution plan utilizing “plus-factor” approach par- which reserves plan action affirmative would not be sufficient. The dramatic sta- exclusively for minori- opportunities ticular underrepresentation of minorities tistical ty applicants. Congress, noted the FCC and see Minor- Fullilove, all, upheld plan after (Commis- Report ity Ownership Taskforce govern- specified percentage of reserved a percent minority sion in 1978 notes one minority for contractors. ment business (Congress ownership); Hearings at 17 plan, voted to sustain the Justice Powell (state- noting percent” ownership) “mere distinguished he and the basis on which Lautenberg), underscores ment of Sen. highly instructive. case from Bakke why policies merely encouraging aimed rely did not on a distinction Justice Powell diversity proven inadequate. general have designed plans action between affirmative general pursuit of diver- The Commission’s plans intended to promote and broadcasting miserably in has failed sified Rather, he remedy prior discrimination. minority representa- achieving meaningful powers Congress: emphasized the broad Statement, Policy supra, tion. 1978 that use of a set-aside “I conclude [do not] made no Significantly, the FCC remedy or always appropriate be an will findings underrepresentation of similar by any of a set-aside the selection “religions,” which “professions” or various body will be constitu- governmental other are groundlessly claims Judge Silberman degree speci- The [citing Bakke tional prefer- ]. targets equally good findings of discrimina- ficity required in the op. at 921. A narrow- ence. See Silberman in of discretion tion and the breadth by justified both ly focused vary the na- may with equality choice of remedies importance of racial particular governmental authority carefully of a ture and of less by the lack of success and Fullilove, 515-16 n. body.” 448 U.S. at efforts. targeted J., (Powell, con- 2793-94 n. 100 S.Ct. at point out that the important to It is also curring). simultaneously followed licensing in af- opinions Wygant approach to “plus-factor” Nor do the Court’s minority credits for fording Silber- enhancement support proposition comparative management The struck and today. Court man advances Congress and hearings. action Both challenged affirmative down the technique O’Connor, however, Powell, have found plan, with Justices job: not do the simply alone does support of the writing opinions White It is clear that the comparative current standards, These me, it recog- seems to hearing process has not resulted in nize two ways distinct in which an affirma- significant award plan tive action may numbers of licenses be said impose groups. excessive Many ap- burdens on innocent nonminori- plicants ties. The simply partic- are Fullilove unable to standard focuses on ipate comparative burden hearings placed on nonminority appli- which of- cants group: ten as a period take a considerable inquiry of time statistical ensures require that minorities will substantial economic re- not be allocated an portion exorbitant opportunities sources. given sphere. Wygant standard H.R.Conf.Rep. No. Cong., 97th 2d focuses on imposed the burdens particu- on (1982) (emphasis added). Thus, Sess. lar nonminority individuals. The distress where diversity of ownership has prov- sale policy satisfies both these standards. en practically through attainable a multi- factored applicant, evaluation the “total” sale policy imposes distress minimal may admissions, work in student burdens on nonminority it does applicants license group. not seem as a target By terms, unreasonable to previously very identified financial invoked at the barriers to minority only ac- Commission’sdiscretion respect cess. to a small fraction all (those broadcast designated licenses C. Upon Nonminority Applicants Effect revocation or renewal hearings on the basis Past decisions, Court as the ma- qualification of basic issues), jority points out, have evaluated affirma- when the licensee chooses to sell out at a tive action assessing schemes the bur- price go rather than through with they impose dens on innocent nonminori- the hearing. Unlike the University of Cali- ties. Those burdens have been measured fornia plan admissions found unconstitu- ways. Fullilove, different for exam- Bakke, tional in 438 U.S. at ple, Justice, the Chief in finding the 10% (Opinion Powell, J.), specific no minority set-aside for construction con- number of licenses is set aside for alloca- constitutional, tracts focused on its rela- tion to through minorities the distress sale tively impact small procurement total Instead, mechanism. poli- opportunities. Fullilove, cy merely U.S. at an offers largely alternative 484-85 & n. S.Ct. at unpredictable 2777-78 & n. 72 procedural route for license (Opinion Burger, C.J.).38 In Wygant, applications. The circumstances the plurality repeatedly emphasized that a distress sales arise are rare only and a plan incorporating hiring goals for minori- small approved; number are as of the imposed ties a lesser burden on nonminori- briefing case, of this poli- the distress sale ties layoff preference,39 than a a cy distinction had in resulted the only transfer of persuasive Powell found Justice in thirty-three Lo- stations to minority-controlled cal 28 as well. See Local 478 U.S. at businesses in years. seven These distress (Powell, J., 106 S.Ct. at 3057 concur- represent sales of all 0.28% broadcast sta- ring). States,40 tions in the United far below the 38. The Chief Justice noted that it was a "not among society considerable generally. extent defect in Though constitutional enterprise hiring goals [the business may burden some innocent provision] individuals, may disap- set-aside that it they simply impose do not the same point firms,” expectations nonminority the injury layoffs kind of 282, impose." 476 U.S. at 448 U.S. especially 100 S.Ct. at (emphasis original). in given partic- 10% minimum ipation translated into 0.25% of the annual 40.See Brief amicus curiae of National Black expenditure for construction Coalition, work in the United League Media the of United Latin States. Id. at 484-85 n. Citizens, S.Ct. at NAACP, (filed American July and the at 33 n. 72. 15, 1985). The FCC also noted small assignments number of distress sale when it Wygant plurality 39. The recently sought reasoned that revising poli- "[i]n comments on involving hiring goals, cases valid cy. 42,048 Inquiry, the burden to Fed.Reg. See Notice of be borne innocent individuals is diffused to a n. 6 policy in- job”).42 sale Since appropriations works public of annual 10% market, entry a it is far more Fulli- into minority businesses volves directed “hirings” “firings.” analogous to than to love. potential in ob- applicant The interest of a imposes far Thus, policy sale the distress taining through comparative license hear- a upon nonminorities less severe burdens is ings the current licensee’s fitness where MBE set- did Fullilove’s group than a speculative than an is more doubt even Fullilove, nonminority firms inAs aside. majori- potential job in a and applicant’s vast interest compete for the free to remain Fur- expectation available. opportunities legitimate certainly licensee lacks ty of con- thermore, when Commission even al- employment of someone of continued sale, not refuse it does a distress siders The current licensee’s ready working. for access nonminority petitions entertain situa- lucky-strike-extra a troubles create non- question. Interested the license unexpectedly, applicants: potential tion for licen- oppose can both minority parties and becomes a available valuable license procedure distress sale of the election sees’ broadcasting property the former licensee’s proposed transaction specific Because dramatically value. decreases a form ... “A distress sale Commission. nature of unique unpredictable of the depends on relief and extraordinary hardly situations, can a distress sale such individual facts and circumstances expectations settled disrupt be said Inc., Center, F.C.C.2d Faith petition.” potential licensees. (1980).41 1, 35 imposes policy Plainly the distress sale impose does the Nor ap- nonminority disadvantages innocent on non- particular unacceptable burden an to belittle their I do not intend plicants, and Shurberg. such as minority individuals license is valu- hardships. A broadcast skepti- most has looked Supreme Court avail- only a few become property; able programs involv- action cally at affirmative fungible.43 are able; the licenses not inevitably in- firings ing layoffs because Nevertheless, that Shur- I do believe expec- of settled disruption greater volve compared plausibly can be berg’s injury Wygant, tations. who, like the by one hardship suffered J.) Powell, (Opinion at 1851 deprived of Wygant, senior teachers opportuni- (“Denial employment a future Shur- of livelihood.44 existing existing an source an as loss of as intrusive ty is not preferences in consent hiring promotion correctly that neither policy the perverse to invalidate would seem practice has licensing which procedures, tive pro- possibility the that on a based gram might theoretical by upheld court. repeatedly this been day be overused. some plurality, Justice Wygant Writing 44. for fact, Commission, to allow in refused 41. layoff temporary "[e]ven noted that Powell Faith Cen- two other sale treatment distress psycho- as may financial well have adverse applica- nonminority filed firms stations and ter many pro- may invest logical A worker effects. Inc., Center, 82 Faith licenses. tions for both city job with the years and one one ductive in recons, denied, (1980), 86 F.C.C.2d F.C.C.2d 1 security stability earning expectation of 891 settled Layoffs disrupt these seniority.... hiring goals way general that expectations ain Weber, 443 Compare Steelworkers United 42. 283, at 1851. 106 S.Ct. U.S. at do not." (1979) 2721, 61 L.Ed.2d U.S. the sort Shurberg suffered Plainly has not per- quotas voluntarily adopted (holding racial lay- with injury Powell associated which Justice VII) Int’l Local Title missible under “hiring” analogized Powell himself Cleveland, Justice offs. Firefighters v. Ass’n of schemes, preference plans admissions (1986) to school (approving L.Ed.2d berg claims sum, that as a result of the 853-55.46 In the near-monopoly exer- distress sale it participation was denied by cised nonminorities over broadcast me- single comparative hearing they which it control approximately of all 98% dia — might have been awarded license. And broadcast very licenses —and the limited exclusion hearing from that forecloses circumstances in which the distress “only see opportunities,” one of several invoked, can be suggest Wygant, at 106 S.Ct. at burden the places nonminority on Powell, (Opinion J.). Shurberg applicants has been is acceptable.47 rendered no worse off than it was before D. Remedying Past Discrimination misconduct;45 Faith Center’s fortuitous it simply been denied a chance at a wind- supra, earlier, see I noted As pp. 941-43, fall. it is deceptive somewhat speak to aof sharp distinction government’s between the

It should also be noted that neither Shur- promote desire to berg any nor broadcast nonminority other applicant its desire remedy past to participation denied discrimination. enterpris- financial Certainly it qualify is appropriate distinguish es sale treatment between the attempt public reason of the composition racial further ac- their cess to managers. fact, varied programming owners As a matter of and the at- tempt in order to lessen the financial advance the obstacles to economic interests of minority increased ownership, the FCC will broadcasters. But the effort accept applications promote part- itself, for sales to limited broadcast ain nerships, management sense, which broad program: control a “remedial” it primarily qualified reside seeks to lasting address the effects of our general partners but long substantial financial nation’s history of racial discrimina- nonminority rewards flow to part- limited tion. will acknowledge, however, that the provided ners who have necessary capi- term (as “remedial” is sometimes used Statement, tal. See 1982 Policy supra, Judge see Silberman it, Silberman uses op. stressing foreclosing opportunity lighter of an hypothetical than the of a burden gram injury reserving does not cause the kind of profits same as the all to minorities. deprivation something party the innocent al- ready Wygant, has. See 476 U.S. at 283 n. 47.My colleagues focusing only err 106 S.Ct. at 1851 n. 11. Justice White’s concur- (which Shurberg individual burden borne rence, provided the fifth vote to strike they exaggerate), forgetting Court’s Wygant plan, down the exclusively rested on parties admonition may innocent some- this distinction. 476 atU.S. times be asked to bear the burden of affirmative supra, p. 1857. See n. programs. Wygant, action 476 U.S. at 280- Powell, J.) (Opinion 106 S.Ct. at 1850 Judge sig- MacKinnon attaches (”[a]s constitutional part of this Nation's dedication to eradi- nificance to the fact that Faith Center’s miscon- discrimination, cating racial persons innocent duct was unrelated discrimination. upon be called to bear some of the burden op. See MacKinnon Surely at 931. can remedy"). prohibition An absolutist preferences make no difference. When racial any question such transfer would call into virtu- resources, are used in the of scarce distribution ally all programs of the affirmative action require Constitution does not re- universities because in most cases some nonmi- product past sources themselves be the must nority applicant opportunity loses his to enter government Clearly discrimination. con- college Similarly, places of his choice. tracting opportunities issue in Fullilove did doubt programs affirmative action in the work- any become available because of discrimi- place because nonminority an unhired often natory act. applicant may opportunity not have other ply community. his trade in same These individuals, Silberman does not see how this alter- they are serious burdens for but [Shurberg’s] native ”affect[s] constitutional have not been held legit- to invalidate otherwise op. claim.” Silberman ous, however, at 918 n. 23. It programs. is obvi- imate My affirmative action col- policy leagues’ approach sale suggests erroneously does my in — admittedly allow nonminorities to share in the permissible view—that affirmative action is benefits, substantial op. only stake, financial nothing very see Silberman important when is at situation, by created a superabundance license revocation opportunity when such a of supra see at 937 note and thus its burden go is exists that no one need without. 912) programs designed to refer to diversity programming ensure in through previously of to benefit members vic- diversity ownership. congressional in race.48 I do wish to offer timized brief observations a few hardly decision was an choice: uninformed concerning programs of Congress nearly acted on the basis of a this sort. experience decade of distress sale Judge policy. principal Silberman’s error Croson, sharply in while limit- The Court give in failure weight lies his to due to the govern- and local ing power of state judgment Congress. considered That pro- affirmative action ments to institute compounded by denigration error is his expansive grams, acknowledged the au- public programming the ty interest diversi- pref- racial thority Congress to mandate fully prece- and his failure to credit the plurality opin- Justice O’Connor’s erences. ion dents of this circuit. recognized “Congress may identify society-wide effects of dis- Congress, despite and redress the agency’s misgiv- 719; crimination,” ings, see also id. has ordered the continuation of a (Scalia, J., concurring). The minority limited designed access scheme dissenters, promote extend three who would broad in broadcasting diversification entities, authority public through remedial to other the elimination of identified struc- surely deny Congress. would read not it to tural barriers that have traditionally bur- reaffirming Croson broad con- dened ownership. Its distress gressional authority employ race-based narrowly is tailored to address position pre- remedies to ameliorate the viously disadvantaged entry the critical minority par- barriers to groups. ticipation Con- impos- media while gress addressing prob- ing only parties. restricted minimal burdens on innocent third prior lems caused tion, its own discrimina- I do not believe that so modest required identify particular it targeted program nor is furthering such a predicate compelling instances of discrimination as a aim violates Constitution. I for remedial action. respectfully therefore dissent. case, present In the I have focused exclu- sively goal enhancing broadcast ON PETITIONS FOR REHEARING diversity. Congress, This is because mandating implementation continued WALD, Before: Judge, Chief SILBER- policy, exclusively distress sale relied on MAN, Judge, MacKINNON, Circuit Senior simply rationale. There is no Judge. Circuit motivated, Congress indication that part, by improve even of desire to the lot My emphasis broadcasters. ORDER the not, however, rationale this case should strong my obscure conviction PER CURIAM. authority that employ retains broad petitions Upon consideration measures in other areas race-based it is intervenor appellee and rehearing of to enhance the economic situation of those who have lasting previously the victims of Court, been peti- ORDERED, by pervasive discrimination. denied. tions are Judge grant peti- WALD would Chief IV. Conclusion rehearing. tions for program down a majority has struck part that is Congress, Judge one A of Senior Circuit mandated a broader statement Mac- constantly evolving effort to attached. KINNON is suggests that I am unclear Silberman “remedial” in a broader sense: ad- seeks to is in fact a as to whether the (or (the remedy) problem dress a societal under- program. op. Silberman at 914 "remedial” See representation of minorities in the broadcast confusion, submit, I would stems n. 13. The field, consequent and the lack of diverse ambiguous nature of the term "remedi- from the gramming) by past which has been caused ra- program not "remedial” al.” The distress sale cial discrimination. I therefore believe that the in which that term is some- in the narrow sense repeated Court’s references purpose compensate is not to times used: powers Congress broad remedial bolster con- past injus- particular minority individuals for gressional authority implement by providing them with increased econom- tices enhancing diversity. supra, as a means of is, however, broadcasting. opportunities It ic pp. 941-43. 954 MacKINNON, Senior Bakke at Judge: Circuit (Powell, J.). 98 S.Ct. at 2757 Transportation Johnson v. Agency, Cf. deny rehearing panel vote to 616, 638, 1442, 1455, 480 U.S. 107 S.Ct. 94 en suggestion banc rehearing for for (1987) (Title L.Ed.2d 615 analysis). VII the reasons set forth below. The standards of the Federal Communi- existing From decisional law it must be cations Commission’s distress any group concluded that racial or prefer question provide here that certain minor- inherently ence is suspect, subject must be ity groups shall prefer- have an absolute to scrutiny close and careful only and can ence over all other citizens in qualifying for upheld justify to an promote award to a broadcast designated license that is for programming diversity if it is one of sever hearing. preferred The minority groups al factors that entered into the decision. — are defined and restricted to those who are: Richmond, J.A. v. City Croson Co. of “black, U.S. -, Hispanic surnamed, 109 S.Ct. American 102 L.Ed.2d Eskimo, Aleut, (O’Connor, J.), American (Scalia, Indian and S.Ct. at 735 Asi- atic J.) (1989) (citations extraction,” American slip opinion). In FCC2d at words, 781 n. 8 group other racial or preference equal if, protection here, violates it is Even all non-minority women are excluded. basis for a federal agency prefer preferred group in this case is: “His- ring applicant one over another. As Jus panic surnamed.” With all the intermar- Universi

tice opinion, Powell stated in his riages, having Hispanic surname is no ty Regents Bakke, v. of California guarantee person that a is “Hispanic” or a 98 S.Ct. 57 L.Ed.2d 750 minority any to substantial degree though— (1978): opinion this nothing makes of point. “[Pjreferring any group one members In my opinion there is no possibility that an for no reason other than race or ethnic absolute group preference can be held to origin is discrimination for its own sake. be constitutional equal under the protection This the constitution forbids.” implicit standard in the 5th Amendment.1 deal, statement in cites Justice Scalia’s earlier, 1. The dissent Here we as we noted not with concurring opinion City Richmond court, his powers the limited remedial of a federal — U.S. -, Co., 109 S.Ct. Croson example, J.A. but with the broad remedial (1989) Congress, notes that which L.Ed.2d powers Congress. It is fundamental that in Amendment, 14th pursuant Section 5 of the to organ government, federal, no state or does legislative powers augmented “concern possess repose there comprehensive a more remedial deny dissent ing of race.” Statement of matters power Congress, expressly than in charged by Shurberg ing rehearing at en banc 958-959 competence Constitution with the and au- Hartford, Broadcasting v. Federal Com Inc. thority equal to protection guaran- enforce Commission, (quoting No. munications tees. Co., supra, Sca City v. J.A. Croson Richmond C.J.) Fullilove at (Burger, 100 S.Ct. at 2777 736). lia, J., implies This citation (emphasis added). seeks, The dissent without Congress’ by 5 of the 14th virtue of Section authority, discussion or rely citations to to legislative powers augmented Amendment has positive Section 5 of the 14th Amendment as a beyond power to enact race extend grant legislative power Congress to enact remedy prior group legislation dis conscious crimination, programs designed race conscious promote legislation authorize and extends to prior absent evidence of respect diversity. designed promote In this discrimination. reaching troubling the far the dissent implied assertion of the dissent that a Clearly, Croson consequences sow. legislative objective remedying other than the assumption. such an does not warrant decision past heightened discrimination is entitled to def- Croson, af Richmond’s the Court considered pursuant erence to Section 5 of the 14th Amend- designed to program which was action firmative alarming logical ment because it has no city. remedy prior in the racial discrimination stopping point. Judge Silberman has also ex- 713; (Scalia, at 109 S.Ct. Croson 109 S.Ct. pressed doubts as to whether is enti- J.). Congress’ Scalia’s reference to the Justice tled to enhanced deference under 14th the 14th powers" under Section 5 of “enhanced Amendment outside the remedial context. Sil- addressing interpreted as must be Amendment Moreover, plurality berman at prior designed remedy discrimina legislation Court stated that race conscious opinion Burger's Similarly, Justice Chief tion. grams "strictly should be reserved for remedial Klutznick, in Fullilove v. 2758, (O’Connor, settings.” Croson 109 S.Ct. at 721 (1980), Congress’ outlined L.Ed.2d 902 (Scalia, J.); J.); See Silberman in the con powers the 14th Amendment under Congress heightened To accord deference under remedy prior legislation designed ra text of settings the 14th Amendment outside remedial cial discrimination: grant Legislative would Branch a broad li-

955 against minorities. The 497, discriminating 74 S.Ct. ly Sharpe, 347 U.S. v. Bolling diversity wheth- programming (1954). of objective 693, 884 L.Ed. 98 Amend- satisfying the 5th as er considered posture noth- present in case its theWith by the 14th Amend- ment, authorized or as The rehearing. gained by ing be would equal of modicum ment, meet some must absolutely prohibited has been Commission protection. change or making any Congress from by the justify facts to determining the if this case at n. 3 that states even The dissent addition, the court program. by merits” the validity of "on the reheard posi- from one equally has vacillated divided court was Commission and the en banc and a teeter-totter upheld. like fail to another tion decision would the FCC’s inwas in this case opinion spec- of this significance it filed its when to understand due to two moods presently 2 1 reversal consti- its court is one As the of ulation. These two case vacancies. of this tuted, Commission unfilled en banc consideration equally ordinarily stated result in an Commissioners would However, the Commission’s banc court would The en constitutional. divided court. court Steele partici- en banc judge who brief senior circuit earlier include the va- (D.C.Cir.1985), which, 1192 based on original panel, F.2d 770 in the pated v. Or- granted, banc rehearing en would result expressed, presently positions cated remanded, of reasoning Order affirming der Oct. a 6-5 vote 15), stated (FCC Brief at panel. Boeing decision of majority October gender 411 F.2d Shipman, the Commission’s v. Company include Beto, would Cir.1969); 395 F.2d policies, (5th v. preference Luna Johnson, unconstitu- were program, Cir.1968); (5th Allen v. the distress Brief Cir.1968); Steele (5th Tavoulareas The Commission’s tional. F.2d cf. Banc) (En Banc stated: Rehearing (D.C.Cir.1987) En Piro, F.2d 762 Judges participating (two Circuit Senior THE POLICY OF I. FCC’S CURRENT partic- to their due rehearing en banc AND RACE GENDER GRANTING panel.). judge three original in the ipation WITH PREFERENCES CONFLICTS likely most be the Thus, only delay would STANDARDS. CONSTITUTIONAL rehearing en banc. granting from result gender preference poli- racial and Patrick, of the as Chairman R. Dennis employed by comparative cies Commission, in Federal Communications licensing proceedings are dis- since 1978 set forth dissenting opinion, has his criminatory by govern- classifications law in an admirable facts material inherently suspect, pre- ment that are denigrate would The dissent opinion. subject sumptively invalid and to strin- opinion be- Chairman’s of the soundness scrutiny equal protection gent under the resigned. subsequently he has cause guarantee implicit process in the due legal is not dimin- decision soundness of the Fifth clause Amendment. See death of an resignation or by ished Wygant v. Bd. Educ. Jackson [476 opinions Marshall’s Chief Justice official. 1842, 1846], still survive prior judges of all and those (1986); 260, 268 Lehr v. Robert- L.Ed.2d legal The evaluation precedents. son, 463 U.S. 265-66 [103 Patrick’s dissent reasoning in Chairman L.Ed.2d 614] on the basis evaluated entitled to be as the extent Properly the same programming legal balanced merits to Because Chairman viewpoint in this case. acceptable mass media is an dissent succinctly opinion cov- goal, but the excellent long history Commission its Patrick’s ap- the law awarding background entire broadcast licenses ers the has never case, it de- phase of this objective thwarted that to each plicable uneonstitutional- degree “equal protection" must still be some of race basis classify citizens cense prefer- an absolute I fail to designed do satisfied. see the Amendment pursuant course, equal protection upheld under the can be ence Of classification. away such racial Amendment, implications of the Amendment. 5th but the 5th case is limited recognition serves more than it has re- Supplemental Brief for the Federal Com- ceived, and, relevant, so far as is set forth munications Commission at Steele v. in the following Appendix.2 FCC, (D.C.Cir.). No. 84-1176 The Commis- unanimously concluded, sion based on re-

APPENDIX Supreme cent Court decisions applying equal protection analysis, that racial classi- DISSENTING OPINION OF CHAIR- may fications not be based assump- MAN PATRICK OF THE FEDERAL alone, tion without a factual predicate, that COMMUNICATIONS IN COMMISSION integrated minority owners will result SHURBERG. programming increased viewpoint and di- versity. Id. aAs result the Commission “The Commission’s preference urged permit the court to us to undertake a policies have a past. tortured The Commis comprehensive inquiry into legal and sion initially position took the predicate of preference policies factual our preferences should granted be only after to determine truly whether a nexus does the minority applicant clearly demonstrated between minority exist and that program and viewpoint diversity gram diversity. The Commission there- would be fostered through minority owner after undertook such a designed study to ship. being After directed the D.C. provide a fuller record and gather Circuit to presume a nexus between minori empirical data necessary support reten- ty ownership and program diversity,1 the preference tion of our scheme. Notice of Commission developed preferences various Inquiry in MM Docket No. FCC designed promote minority ownership, 86-549, (1986). 1 FCC Red. 1315 Prior to including the distress at issue in completion study, however, of this Con- Shurberg, comparative preference poli gress decreed that expend no cy and the tax policy. certificate Poli funds in fiscal year See complete its cy Statement on minority or to Ownership change preference research its poli- Facilities, Broadcast compliance cies.2 In F.C.C.2d with congression- (1978). mandate, al Commission later Commission closed its rule- extended the comparative preference making, issuing any findings without females. conclusions, See and prefer- Mid-Florida all Corp., reestablished Television 69 F.C. policies. (1978). C.2d ence The constitutionality of that policy challenged was Steel Shurberg, In each of the separate three FCC, 770 F.2d (D.C.Cir.1985), vacated opinions treats Michigan differently. West and rehearing en granted, banc Order of Judge questions Silberman West Michi- Oct. remanded Order of Oct. gan ’s initial conclusion that there ais com- 1986. At point, the Commission be pelling government interest in increasing lieved gender that “both the and racial diversity of programming goes on to preference schemes equal pro conflict with may, event, conclude that it in any be un- tection standards under the Constitution.” dermined Supreme Court’s recent 2. The fact that Patrick Chairman re- favored Making Continuing Appropriations Further hearing banc in this case en and Winter Park Fiscal Year Purposes, Other for Dec. was not because stated is not relevant here. (signed 1987). No. Pub.L. supported rehearing He Shurberg en banc for appropriations prohibits legislation the Commis- only However, if Park Winter was included. using repeal, sion from funds "to to retroac- distinguishable Winter Park on two material in, tively changes apply or to continue a reex- grounds. (1) comparative It hearing involved policies amination of’ prem- the Commission’s (2) minority preference only plus racial, classification, gender ised on ethnic or Shurberg minority preference is an factor. (1) except proceeding to: its investigating close absolute preference. This case is not to be con- preference (2) policies; prior poli- reinstate trasted a case involved race as (3) cy; any suspension imposed lift comparative one in a licensing proce- factor implementing policies pending investiga- dure. tion. 1. TV Inc. v. [929], (D.C.Cir.1973), 495 F.2d 939 denied, rt. 419 U.S. 986 ce [95 S.Ct. L.Ed.2d 194] implemented be

ty preference policies Fullilove, discrimination. remedy past Judge MacKinnon’s in Croson. decision S.Ct. at Sec- at 475 2773].4 [100 Michigan West not address does opinion Bakke be- ond, Powell least Justice per se policies preference but insists institutions, that, ac- educational lieved tailored, narrowly while must govern- compelling diversity is a ademic least some of the that at concludes Wald Bakke, 438 U.S. at 311-15 Michigan have in West ment interest.5 conclusions Powell, J.). (opinion of by subsequent undermined S.Ct. at 2759-61] been [98 decisions. Court the D.C. justification, this second From precedents collec- Supreme Court Recent Michigan extrapolated Circuit West gender racial and tively make clear that broadcasting a diversity” in “program find suspect inherently are classifications out premise, set This compelling interest. close and scruti- subject be careful will Michigan, in West Pow- relies on Justice Croson, after ny.3 significantly, Most opinion in Bakke diverse edu- that a ell’s any gov- required for of review standard goal compelling is a environment cational race is based on ernmental classification by constitutionally promoted may that be scrutiny. City Richmond v. J.A. strict of recognize policies which admissions certain Co., 4132, Croson 4139 U.S.L.W. 57 [— As racial several factors. one of race as -, -, 102 109 S.Ct. U.S. truly di- a only aspect one of diversity is (Part III-A) [-, and 4146 L.Ed.2d 854] Powell believed body, Justice verse student (Scalia, concurring). J. 109 at S.Ct. 735] race as one university use could that a protection analy- stage equal first of The deci- admissions in a multi-factor factor scrutiny requires a determi- strict sis under sion.6 compelling is a as to there nation whether program diversi- if assume Similarly, one objective. Supreme The Court government one race is but compelling goal, a ty to be compelling interests has identified two view- diversity of on First, which bear factor policies. such minori- for race-based diversity Co., sympathy for Justice some rationale, Powell’s e.g., City Croson Richmond v. J.A. 3. of U.S. -, Wygant, at S.Ct. at [106 476 U.S. J., 286 109 S.Ct. [— U.S.L.W. 4132 57 1989); (O’Connor, appears (U.S. Wygant concurring), v. Jan. 1852] L.Ed.2d 854] 102 Education, 106 rejected U.S. Croson. Justice [476 that rationale in Jackson Board have of (1986); v. opinion Fullilove 260 interpreted 90 L.Ed.2d O’Connor's 1842] S.Ct. Justice Stevens Klutznik, L.Ed. Croson, S.Ct. 65 [100 448 rejection, U.S. at 4144 57 U.S.L.W. as such a (1980); University Regents 902] 2d 730 n. 1] at of U.S. S.Ct. n. 1 at - n. [— Bakke, U.S. S.Ct. [98 v. J., Judge (Stevens, concurring part), as has California (1978). Mississippi See also 750] 57 L.Ed.2d Silberman, Shurberg, opin. at 919- Silberman Hogan, U.S. 718 University Women agrees sub Judge for as to the Wald 921. While L.Ed.2d 1090] S.Ct. [102 interpretation Stevens’ stance of Justice opin. Shurberg, at 942 opinion, Wald O’Connor has never claimed Commission read that (dissenting), would she herself n. 20 remedy prior preference policies are intended respect differently. due opinion With all same provide against or to minorities discrimination Wald, interpreta Judge defer to the I must argued that Con- could be benefits. It remedial rendered member of Croson tion adopted policies as its separately our gress has Thus, light the Court’s Supreme Court. own, policies are justification that its with the Croson, diver the academic whether decision in justify Congress its fund- did not remedial. But govern compelling sity as a rationale remains my Commis- As fellow ing decisions remedial. open policies is an for race-based ment interest solely a diver- agree, relied on sioners sity then, ra Certainly of that question. extensions Rehearing at n. or FCC Petition rationale. supported. cannot be tionale however, court, plan the Bakke 6.The before Pow Justice after Croson whether is unclear 5. It set-aside, ac- did not employed a racial endorsed diversity would be rationale ell’s Justice As factors. count for other plurality the Court present A Court. Bakke, “preferring members wrote Powell clearly classifications quite stated that that case race group than for no reason other one "strictly reserved on should based race sake. its own origin is discrimination ethic Croson, settings.” 57 U.S.L.W. remedial Bakke, 438 U.S. forbids.” 721], This Constitution at -, id. at see also [— thus struck Court J., (Scalia, 2757]. S.Ct. [98 at 307 [-, concur at 735] O’Connor, plan as unconstitutional. down had indicated ring). And who Justice lated to the full taking court. The of a requested. Thereafter, majori- vote was point.7 Because status is the ex- ty judges regular of the Court in for use of the clusive criterion why policy, policy passes I fail to see active service did not vote in favor of either even test. Justice Powell’s Outside the suggestion. Upon consideration of the context, remedial has Court foregoing it is upheld preference policy never based ORDERED, by banc, the Court en solely race, specifically rejected suggestions are denied. the use of set-asides as a means Bakke, promoting diversity. 438 U.S. at 2760-63]. [98 Chief WALD and Circuit Fullilove, my Citing fellow Commission- ROBINSON, Judges MIKVA, why ers reason the court see no should not EDWARDS and RUTH B. GINSBURG findings extend its in the remedial context grant suggestions. would arena. I submit that one necessarily does not lead to the other. It is WALD, A statement of Judge Chief Supreme clear after the Court’s decision in joined by ROBINSON, Judges Circuit Croson that race-based measures are sub- MIKVA, EDWARDS and RUTH B. ject highest degree scrutiny. GINSBURG, is attached. past Where evidence of discrimination ex- ists, the Court well tolerate race-based Former Circuit STARR did remedial measures. But where the most participate in this matter while a goal issue, nebulous is at member of the Court. permit most that even Justice Powell would is the consideration of race as one of sever- WALD, Judge, joined by Chief al no factors. There is basis to think the ROBINSON, MIKVA, EDWARDS and Court would allow more. GINSBURG, RUTH B. Judges, Circuit Ensuring minority perspectives can dissenting rehearing from denial of en marketplace be aired in a diverse broadcast banc: important policy goal support. is an which I licensing But poli- our station and transfer My panel’s dissent from disposition must, else, guarantee cies all equal above my of this case sets forth reasons for con- protection of the laws to all Americans. cluding that policy is a such, policies As our race-conscious must congressional constitutional exercise of subjected rigorous to the most review to power. reasons, For regard several this fidelity principle. insure to this sufficiently important case as to warrant en banc reconsideration. WALD, Judge, Before Chief First, the continued ROBINSON, MIKVA, EDWARDS, use of the distress GINSBURG, SILBERMAN, B. RUTH by has been mandated an Act of BUCKLEY, WILLIAMS, D.H. Congress. panel opinions in this case SENTELLE, GINSBURG and Circuit rely heavily Court’s deci Judges. in Wygant sions v. Jackson Board Edu cation, 106 S.Ct. ON SUGGESTIONS FOR (1986) City L.Ed.2d 260 Richmond REHEARING EN BANC —Co., U.S. -, v. J.A. Croson ORDER (1989), 102 L.Ed.2d 854 both of which PER CURIAM. plans by involved affirmative initiated local authorities. Of the six Justices who com suggestions rehearing en banc appellee however, prised majority, intervenor have been circu- the Croson four noted, however, is, previously 7. As I have the Com- that whether there is a nexus between minor- prohibited determining mission has been from ity ownership programming. viewpoint diversity, whether race is a factor in supports express an distinction between it the distress sale drew —a powers and the expansive fact which was not free from doubt at the powers more limited of state and local panel’s time of the decision.1 Portions of (Opin- at 719 governments. See 109 S.Ct. panel opinions also upon cast doubt O’Connor, J.) (“That Congress may ion policies designed other FCC mi- increase society- identify and redress the effects of nority participation in broadcast that, mean wide discrimination does not enhancing as a means of programming di- political the States and their subdi- fortiori, versity. policies These include the consid- free to reme- visions are decide that such eration of race as one compara- element in (Scalia, J., appropriate”); dies are id. at 736 licensing procedures practice tive —a (“[I]t concurring) thing permit is one recently by reaffirmed Court Win- racially by based conduct the Federal uncertainty ter Park. Substantial now ex- legislative powers Government —whose concerning scope ists of the Commis- concerning explicitly matters of race were authority sion’s to consider race in its li- Amendment, enhanced the Fourteenth censing rehearing decisions. En banc Const., quite Amdt. 5—and see § especially desirable view of the fact that permit precise another to entities this court is the exclusive forum for review against whose conduct matters of race licensing policies. of the FCC’s directed, specifically that Amendment was 14, 1”). certainly Finally, panel’s disposition Amdt. Croson did see of this § posed questions not resolve the substantial case creates considerable doubt as to by congressional programs which mandate pursuit whether the remains a fact, preferences. the use of racial In justification viable for affirmative action curtailment of state and Croson Court’s programs setting. in any aspect This programs makes local affirmative action panel opinions has constitutional ramifi- congressional authority all the issue of stretching beyond cations well the broad- important. more This issue alone merits context; casting clearly ques- it calls into en review. banc constitutionality tion the of affirmative ac- Second, itself, programs tion student admissions at agency despite pri- misgivings, clearly public has indicated universities.2 A decision such now Judge great significance Dissenting MacKinnon attaches Statement of Chairman Dennis R. agency’s to the fact that the decision to seek Patrick at 3. My rehearing agency’s concerning was made a 2-1 vote. col- Nor do the recent doubts league lengthy excerpts provides from policy impugn the distress sale the Commis all, Chairman Dennis Patrick’s dissent from the support. prior FCC's sion's current After position petition for en banc Commission’s enforcement of the fairness doctrine did not the lone review. Since Chairman Patrick was dissenter, invalidate its recent decision that the doctrine resigned since he from his repealed. Syracuse should be See Peace Council Commission, post upon ap- FCC, (D.C.Cir. 1989). effective F.2d The Com v. successor, hardly pointment of his his views are simply prior the fact mission’s doubts reflect posi- agency’s best indicator of the current complex of the that this is a and difficult area tion. against hardly argument re an en banc law— Moreover, view. opposition to Chairman Patrick’s rehearing hardly unequivocal. of this case was original panel produced three different 2. The stated: The Chairman Judge expressed issue. Silberman views on this complexity light importance diversity rationale for doubt as to whether the issues, particularly given recent Con- these light preferences remains viable in racial gressional varying opinions and the actions Croson, higher education. even in the context Communications, Shurberg Park and Winter [ op. Mac- See Silberman 919-20. ], (D.C.Cir.1989) I Inc. v. 873 F.2d 347 question. to reach the See Kinnon declined petition the D.C. Circuit to hear Shur- would op. expressed n. 11. I MacKinnon berg support petition for re- en banc and sufficiently pursuit of is a view that the hearing Both cases could be on Winter Park. important justify interest the use of give together considered and the court could Certainly preferences. op. Wald support 941-42. guidance. But I cannot us definitive panel opinions diversity- all do not foreclose my approach of re- Commissioners' fellow contexts, they likely plans based in other but are only partial enlightenment in this questing spawn uncertainty considerable and confu- area. sweeping implications surely appropri- an subject

ate of en banc reconsideration. reasons, foregoing

For the dissent from rehearing

the denial of en banc. deni- review, by equally court,3

al of an divided

has the effect of invalidating congres-

sional longstand- enactment —as well as a

ing, vigorously supported agency program

—designed address the dearth of minori-

ty voices within the nation’s broadcast me-

dia. The and the FCC deserve

the consideration of the full court on such a

serious matter.

OVERSEAS EDUCATION

ASSOCIATION, INC.,

Petitioner,

FEDERAL LABOR RELATIONS

AUTHORITY, Respondent.

OVERSEAS EDUCATION

ASSOCIATION, INC.,

Petitioner,

v.

FEDERAL LABOR RELATIONS

AUTHORITY, Respondent. 87-1468,

Nos. 87-1575. Appeals,

United States Court of

District of Columbia Circuit.

Argued Oct. 1988. May

Decided Stevens, J.). among public (Opinion public sion administrators in a wide If univer- range settings notably sity programs in education. admissions which take account of —most constitutionally proscribed, race are Moreover, Regents all nine Justices in scription apply private would also universi- Bakke, University of California receiving ties federal funds. (1978), 57 L.Ed.2d 750 concluded Rights that Title VI of the Civil Act of I would note that when an en banc court is 2000d, imposes § U.S.C. restrictions at least as merits, equally divided on the the decision of the severe as those established the Constitution. agency is affirmed. See Handbook of Practice Bakke, 286-87, U.S. at S.Ct. at 2746- Procedures, and Internal United States Court of Powell, J.); (Opinion id. at Appeals for the District of Columbia Circuit at Brennan, White, (Opinion Mar shall, Blackmun, JJ.); id. at notes alleged fraudulently to have solicited Likewise, pro- because the distress sale using the funds for the stated by funds not gram any has no limits of character it is purpose in violation of 18 U.S.C. § sufficiently goal tailored to the (1980), denied, reconsid. F.C. 82 F.C.C.2d moting programming diversity. Compli- (1981), mem., C. 81-235 Faith Center aff'd voluntary program ance is and the contains (1982), FCC, 679 F.2d 261 cert. Inc. any programming no assurance that diver- denied, 103 S.Ct. sity Thus, will be achieved.18' (1983). There is no connection L.Ed.2d 435 subject only public to the broad interest any violation and between Faith Center’s standard, ap- has unfettered discretion in any way is in relat past discrimination that proving distress sales. may of licenses which ed to the number opinion to minorities under the also contends that become available Silberman Although, prac- program, the distress sale as a means of program. distress sale objecting employment. minority Rather status is ele- 15.The dissent contends grounds program vated to the determinative factor. distress sale on the to the number of licenses that there is no limit sales of broadcast licenses must 16. All distress "perverse” light program reach approved be the FCC. relatively previ- sales over the few distress years. n. This attack ous ten Dissent at 950 Eskimos, 17. The classification of American argument; the thrust of the the lack of misses Hispanic sumamed individuals Aleuts and is but one numerical limits against discriminated minorities who have been aspect of the untailored nature of the licensing field cannot be said to in the broadcast policy. addition to the lack of legitimate. gross unquestionably over- "The program, there is no numerical limit on the of Richmond’s [the FCC’s] inclusiveness value, size or limitation whatsoever as to the strongly impugns preference the ... claim of stations, or the need market share of affected at -, motivation." Croson remedial prior the licensee. In this discrimination infra, at 728. See at 933 n. 26.

Notes

notes MacKinnon Stotts, decree) Firefighters 1784 v. Local established nor the Commission has L.Ed.2d 483 of stations on the number numerical limit layoffs). quota required (invalidating sale pursuant the distress transferred Experience op. at 930. policy. See MacKinnon however, time, period of Shurberg may over an extended have a diffi- recognize that account will that distress sales notion belied station. acquiring another television time cult country’s percentage however, a substantial respect, the distress In this backdrop it Against broadcast outlets. compara- from the use race different is no

Case Details

Case Name: Shurberg Broadcasting of Hartford, Inc. v. Federal Communications Commission, Astroline Communications Co., Intervenor

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Jun 16, 1989

Citation: 876 F.2d 902

Docket Number: 84-1600

Court Abbreviation: D.C. Cir.