|Metro Broadcasting, Inc. v. Federal Communications Commission
100 U.S. 1
No. 89-453, 277 U.S.App.D.C. 134, 873 F.2d 347 (CADC 1989), affirmed and remanded; No. 89-700, 278 U.S.App.D.C. 24, 876 F.2d 902 (CADC 1989), reversed and remanded.
[ Brennan ]
[ Stevens ]
[ O'Connor ]
[ Kennedy ]
Metro Broadcasting, Inc. v. Federal Communications Commission
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
Justice BRENNAN delivered the opinion of the Court.
The issue in these cases, consolidated for decision today, is whether certain minority preference policies of the Federal Communications Commission violate the equal protection component of the Fifth Amendment. The policies in question are (1) a program awarding an enhancement for minority ownership in comparative proceedings for new licenses, and (2) the minority "distress sale" program, which permits a limited category of existing radio and television broadcast stations to be transferred only to minority-controlled firms. We hold that these policies do not violate equal protection principles.
The policies before us today can best be understood by reference to the history of federal efforts to promote minority [p553] participation in the broadcasting industry. [n1] In the Communications Act of 1934, 48 Stat. 1064, as amended, Congress assigned to the Federal Communications Commission (FCC or Commission) exclusive authority to grant licenses, based on "public convenience, interest, or necessity," to persons wishing to construct and operate radio and television broadcast stations in the United States. See 47 U.S.C. §§ 151 301, 303, 307, 309 (1982 ed.). Although for the past two decades minorities have constituted at least one-fifth of the United States population, during this time relatively few members of minority groups have held broadcast licenses. In 1971, minorities owned only 10 of the approximately 7,500 radio stations in the country, and none of the more than 1,000 television stations, see TV 9, Inc. v. FCC, 161 U.S.App.D.C. 349, 357, n. 28, 495 F.2d 929, 937, n. 28 (1973), cert. denied, 419 U.S. 986 (1974); see also 1 U.S. Commission on Civil Rights, Federal Civil Rights Enforcement Effort -- 1974, p. 49 (Nov.1974); in 1978, minorities owned less than 1 percent of the Nation's radio and television stations, see FCC Minority Ownership Task Force, Report on Minority Ownership in Broadcasting 1 (1978) (hereinafter Task Force Report); and in 1986, they owned just 2.1 percent of the more than 11,000 radio and television stations in the United States. See National Association of Broadcasters, Minority Broadcasting Facts 6 (Sept.1986). Moreover, these statistics fail to reflect the fact that, as late entrants who often have been able to obtain only the less valuable stations, many minority [p554] broadcasters serve geographically limited markets with relatively small audiences. [n2]
The Commission has recognized that the viewing and listening public suffers when minorities are underrepresented among owners of television and radio stations:
Acute underrepresentation of minorities among the owners of broadcast properties is troublesome because it is the licensee who is ultimately responsible for identifying and serving the needs and interests of his or her audience. Unless minorities are encouraged to enter the mainstream of the commercial broadcasting business, a substantial portion of our citizenry will remain underserved, and the larger, non-minority audience will be deprived of the views of minorities.
Task Force Report at 1. The Commission has therefore worked to encourage minority participation in the broadcast industry. The FCC began by formulating rules to prohibit licensees from discriminating against minorities in employment. [n3] The FCC explained that
broadcasting is an important mass media form which, because it makes use of the airwaves belonging to the public, must obtain a Federal license under a public interest standard and must operate in the public interest in order to obtain periodic renewals of that license.
Nondiscrimination Employment Practices of Broadcast Licensees, 13 F.C.C.2d 766, 769 (1968). Regulations dealing with employment practices were justified as necessary to enable the FCC to satisfy [p555] its obligation under the Communications Act to promote diversity of programming. See NAACP v. FCC, 425 U.S. 662, 670, n. 7 (1976). The United States Department of Justice, for example, contended that equal employment opportunity in the broadcast industry could "‘contribute significantly toward reducing and ending discrimination in other industries'" because of the "‘enormous impact which television and radio have upon American life.'" Nondiscrimination Employment Practices, 13 F.C.C.2d at 771 (citation omitted).
Initially, the FCC did not consider minority status as a factor in licensing decisions, maintaining as a matter of Commission policy that no preference to minority ownership was warranted where the record in a particular case did not give assurances that the owner's race likely would affect the content of the station's broadcast service to the public. See Mid-Florida Television Corp., 33 F.C.C.2d 1, 17-18 (Rev.Bd.), review denied, 37 F.C.C.2d 559 (1972), rev'd, TV 9, Inc. v. FCC, supra. The Court of Appeals for the District of Columbia Circuit, however, rejected the Commission's position that an "assurance of superior community service attributable to . . . Black ownership and participation" was required before a preference could be awarded. TV 9, Inc., supra, 161 U.S.App.D.C. at 358, 495 F.2d at 938. "Reasonable expectation," the court held, "not advance demonstration, is a basis for merit to be accorded relevant factors." Ibid. See also Garrett v. FCC, 168 U.S.App.D.C. 266, 273, 513 F.2d 1056, 1063 (1975).
In April, 1977, the FCC conducted a conference on minority ownership policies, at which participants testified that minority preferences were justified as a means of increasing diversity of broadcast viewpoint. See Task Force Report, at 4-6. Building on the results of the conference, the recommendations of the Task Force, the decisions of the Court of Appeals for the District of Columbia Circuit, and a petition proposing [p556] several minority ownership policies filed with the Commission in January, 1978, by the Office of Telecommunications Policy (then part of the Executive Office of the President) and the Department of Commerce, [n4] the FCC adopted in May, 1978, its Statement of Policy on Minority Ownership of Broadcasting Facilities, 68 F.C.C.2d 979. After recounting its past efforts to expand broadcast diversity, the FCC concluded:
[W]e are compelled to observe that the views of racial minorities continue to be inadequately represented in the broadcast media. This situation is detrimental not only to the minority audience, but to all of the viewing and listening public. Adequate representation of minority viewpoints in programming serves not only the needs and interests of the minority community but also enriches and educates the non-minority audience. It enhances the diversified programming which is a key objective not only of the Communications Act of 1934 but also of the First Amendment.
Id. at 980-981 (footnotes omitted). Describing its actions as only "first steps," id. at 984, the FCC outlined two elements of a minority ownership policy.
First, the Commission pledged to consider minority ownership as one factor in comparative proceedings for new licenses. When the Commission compares mutually exclusive applications for new radio or television broadcast stations, [n5] it [p557] looks principally at six factors: diversification of control of mass media communications, full-time participation in station operation by owners (commonly referred to as the "integration" of ownership and management), proposed program service, past broadcast record, efficient use of the frequency, and the character of the applicants. See Policy Statement on Comparative Broadcast Hearings, 1 F.C.C.2d 393, 394-399 (1965); West Michigan Broadcasting Co. v. FCC, 236 U.S.App.D.C. 335, 338-339, 735 F.2d 601, 604-607 (1984), cert. denied, 470 U.S. 1027 (1985). In the Policy Statement on Minority Ownership, the FCC announced that minority ownership and participation in management would be considered in a comparative hearing as a "plus" to be weighed together with all other relevant factors. See WPIX, Inc., 68 F.C.C.2d 381, 411-412 (1978). The "plus" is awarded only to the extent that a minority owner actively participates in the day-to-day management of the station.
Second, the FCC outlined a plan to increase minority opportunities to receive reassigned and transferred licenses through the so-called "distress sale" policy. See 68 F.C.C.2d at 983. As a general rule, a licensee whose qualifications to hold a broadcast license come into question may not assign or transfer that license until the FCC has resolved its doubts in a noncomparative hearing. The distress sale policy is an exception to that practice, allowing a broadcaster whose license has been designated for a revocation hearing, or whose renewal application has been designated for hearing, to assign the license to an FCC-approved minority enterprise. See ibid; Commission Policy Regarding the Advancement of Minority Ownership in Broadcasting, 92 F.C.C.2d 849, 851 (1982). The assignee must meet the FCC's basic qualifications, and the minority ownership must exceed 50 percent or be controlling. [n6] The buyer must purchase the license before [p558] the start of the revocation or renewal hearing, and the price must not exceed 75 percent of fair market value. These two Commission minority ownership policies are at issue today. [n7]
In No. 89-453, petitioner Metro Broadcasting, Inc. (Metro) challenges the Commission's policy awarding preferences to minority owners in comparative licensing proceedings. Several applicants, including Metro and Rainbow Broadcasting (Rainbow), were involved in a comparative proceeding to select among three mutually exclusive proposals to construct and operate a new UHF television station in the Orlando, Florida, metropolitan area. After an evidentiary hearing, an Administrative Law Judge (ALJ) granted Metro's application. Metro Broadcasting, Inc., 96 F.C.C.2d 1073 (1983). The ALJ disqualified Rainbow from consideration because of "misrepresentations" in its application. Id. at 1087. On review of the ALJ's decision, however, the Commission's Review Board disagreed with the ALJ's finding regarding Rainbow's candor and concluded that Rainbow was qualified. Metro Broadcasting, Inc., 99 F.C.C.2d 688 (Rev.Bd. 1984). The Board proceeded to consider Rainbow's comparative showing, and found it superior to Metro's. In so doing, the Review Board awarded Rainbow a substantial enhancement [p559] on the ground that it was 90 percent Hispanic-owned, whereas Metro had only one minority partner who owned 19.8 percent of the enterprise. The Review Board found that Rainbow's minority credit outweighed Metro's local residence and civic participation advantage. Id. at 704. The Commission denied review of the Board's decision largely without discussion, stating merely that it "agree[d] with the Board's resolution of this case." No. 85558 (Oct. 18, 1985), p. 2; App. to Pet. for Cert. in No. 89-453, p. 61a.
Metro sought review of the Commission's order in the United States Court of Appeals for the District of Columbia Circuit, but the appeal's disposition was delayed; at the Commission's request, the court granted a remand of the record for further consideration in light of a separate ongoing inquiry at the Commission regarding the validity of its minority and female ownership policies, including the minority enhancement credit. See Notice of Inquiry on Racial, Ethnic or Gender Classifications, 1 F.C.C.Rcd 1315 (1986) (Docket 86-484). [n8] The Commission determined that the outcome in the licensing proceeding between Rainbow and Metro might depend on whatever the Commission concluded [p560] in its general evaluation of minority ownership policies, and accordingly it held the licensing proceeding in abeyance pending further developments in the Docket 86-484 review. See Metro Broadcasting, Inc., 2 F.C.C.Rcd 1474, 1475 (1987).
Prior to the Commission's completion of its Docket 86-484 inquiry, however, Congress enacted and the President signed into law the FCC appropriations legislation for fiscal year 1988. The measure prohibited the Commission from spending any appropriated funds to examine or change its minority ownership policies. [n9] Complying with this directive, the Commission closed its Docket 86-484 inquiry. See Reexamination of Racial, Ethnic or Gender Classifications, Order, 3 F.C.C.Rcd 766 (1988). The FCC also reaffirmed its grant of the license in this case to Rainbow Broadcasting. See Metro Broadcasting, Inc., 3 F.C.C.Rcd 866 (1988).
The case returned to the Court of Appeals, and a divided panel affirmed the Commission's order awarding the license to Rainbow. The court concluded that its decision was controlled by prior circuit precedent, and noted that the Commission's action was supported by
"highly relevant congressional action that showed clear recognition of the extreme underrepresentation of minorities and their perspectives in [p561] the broadcast mass media."
Winter Park Communications, Inc. v. FCC, 277 U.S.App.D.C. 134, 140, 873 F.2d 347, 353 (1989), quoting West Michigan, 236 U.S.App.D.C. at 347, 735 F.2d at 613. After petitions for rehearing and suggestions for rehearing en banc were denied, we granted certiorari. 493 U.S. 1017 (1990).2
The dispute in No. 89-700 emerged from a series of attempts by Faith Center, Inc., the licensee of a Hartford, Connecticut television station, to execute a minority distress sale. In December, 1980, the FCC designated for a hearing Faith Center's application for renewal of its license. See Faith Center, Inc., FCC 80-680 (Dec. 21, 1980). In February, 1981, Faith Center filed with the FCC a petition for special relief, seeking permission to transfer its license under the distress sale policy. The Commission granted the request, see Faith Center, Inc., 88 F.C.C.2d 788 (1981), but the proposed sale was not completed, apparently due to the purchaser's inability to obtain adequate financing. In September, 1983, the Commission granted a second request by Faith Center to pursue a distress sale to another minority-controlled buyer. The FCC rejected objections to the distress sale raised by Alan Shurberg, who at that time was acting in his individual capacity. [n10] See Faith Center, Inc., 54 Radio Reg.2d (P & F) 1286, 1287-1288 (1983); Faith Center, Inc., 55 Radio Reg.2d (P & F) 41, 44-46 (Mass Media Bur.1984). This second distress sale also was not consummated, apparently because of similar financial difficulties on the buyer's part.
In December, 1983, respondent Shurberg Broadcasting of Hartford, Inc. (Shurberg) applied to the Commission for a permit to build a television station in Hartford. The application was mutually exclusive with Faith Center's renewal [p562] application, then still pending. In June, 1984, Faith Center again sought the FCC's approval for a distress sale, requesting permission to sell the station to Astroline Communications Company, Limited Partnership (Astroline), a minority applicant. Shurberg opposed the sale to Astroline on a number of grounds, including that the FCC's distress sale program violated Shurberg's right to equal protection. Shurberg therefore urged the Commission to deny the distress sale request and to schedule a comparative hearing to examine the application Shurberg had tendered alongside Faith Center's renewal request. In December, 1984, the FCC approved Faith Center's petition for permission to assign its broadcast license to Astroline pursuant to the distress sale policy. See Faith Center, Inc., 99 F.C.C.2d 1164 (1984). The FCC rejected Shurberg's equal protection challenge to the policy as "without merit." Id. at 1171.
Shurberg appealed the Commission's order to the United States Court of Appeals for the District of Columbia Circuit, but disposition of the appeal was delayed pending completion of the Commission's Docket 86-484 inquiry into the minority ownership policies. See supra, at 559. After Congress enacted and the President signed into law the appropriations legislation prohibiting the FCC from continuing the Docket 86-484 proceeding, see supra at 560, the Commission reaffirmed its order granting Faith Center's request to assign its Hartford license to Astroline pursuant to the minority distress sale policy. See Faith Center, Inc., 3 F.C.C.Rcd 868 (1988).
A divided Court of Appeals invalidated the Commission's minority distress sale policy. Shurberg Broadcasting of Hartford, Inc. v. FCC, 278 U.S.App.D.C. 24, 876 F.2d 902 (1989). In a per curiam opinion, the panel majority held that the policy
unconstitutionally deprives Alan Shurberg and Shurberg Broadcasting of their equal protection rights under the Fifth Amendment because the program is not narrowly taylored to remedy past discrimination or to promote [p563] programming diversity
the program unduly burdens Shurberg, an innocent nonminority, and is not reasonably related to the interests it seeks to vindicate.
Id. at 24-25, 876 F.2d at 902-903. Petitions for rehearing and suggestions for rehearing en banc were denied, and we granted certiorari. 493 U.S. 1018 (1990).
It is of overriding significance in these cases that the FCC's minority ownership programs have been specifically approved -- indeed, mandated -- by Congress. In Fullilove v. Klutznick, 448 U.S. 448 (1980), Chief Justice Burger, writing for himself and two other Justices, observed that, although "[a] program that employs racial or ethnic criteria . . . calls for close examination," when a program employing a benign racial classification is adopted by an administrative agency at the explicit direction of Congress, we are
bound to approach our task with appropriate deference to the Congress, a co-equal branch charged by the Constitution with the power to "provide for the . . . general Welfare of the United States" and "to enforce, by appropriate legislation," the equal protection guarantees of the Fourteenth Amendment.
Id. at 472; see also id. at 491; id. at 510, and 515-516, n. 14 (Powell, J., concurring); id. at 517-520 (MARSHALL, J., concurring in judgment). We explained that deference was appropriate in light of Congress' institutional competence as the national legislature, see id. at 490 (opinion of Burger, C.J.); id. at 498 (Powell, J., concurring), as well as Congress' powers under the Commerce Clause, see id. at 475-476 (opinion of Burger, C.J.); id. at 499 (Powell, J., concurring), the Spending Clause, see id. at 473-475, 478 (opinion of Burger, C.J.), and the Civil War Amendments see id. at 476-478 (opinion of Burger, C.J.); id. at 500, 508-509 (Powell, J., concurring). [n11] [p564]
A majority of the Court in Fullilove did not apply strict scrutiny to the race-based classification at issue. Three Members inquired "whether the objectives of th[e] legislation are within the power of Congress" and "whether the limited use of racial and ethnic criteria . . . is a constitutionally permissible means for achieving the congressional objectives." Id. at 473 (opinion of Burger, C.J.) (emphasis in original). Three other Members would have upheld benign racial classifications that "serve important governmental objectives and are substantially related to achievement of those objectives." Id. at 519 (MARSHALL, J., concurring in judgment). We apply that standard today. We hold that benign race-conscious measures mandated by Congress [n12] -- even if those [p565] measures are not "remedial" in the sense of being designed to compensate victims of past governmental or societal discrimination -- are constitutionally permissible to the extent that they serve important governmental objectives within the power of Congress and are substantially related to achievement of those objectives.
Our decision last Term in Richmond v. J.A. Croson Co., 488 U.S. 469 (1989), concerning a minority set-aside program adopted by a municipality, does not prescribe the level of scrutiny to be applied to a benign racial classification employed by Congress. As Justice KENNEDY noted, the question of congressional action was not before the Court, id. at 518 (opinion concurring in part and concurring in judgment), and so Croson cannot be read to undermine our decision in Fullilove. In fact, much of the language and reasoning in Croson reaffirmed the lesson of Fullilove that race-conscious classifications adopted by Congress to address racial and ethnic discrimination are subject to a different standard than such classifications prescribed by state and local governments. For example, Justice O'CONNOR, joined by two other Members of this Court, noted that "Congress may identify and redress the effects of society-wide discrimination," 488 U.S. at 490, and that Congress "need not make specific findings of discrimination to engage in race-conscious relief." Id. at 489. [n13] Echoing Fullilove's emphasis on Congress [p566] as a national legislature that stands above factional politics, Justice SCALIA argued that, as a matter of "social reality and governmental theory," the Federal Government is unlikely to be captured by minority racial or ethnic groups and used as an instrument of discrimination. 488 U.S. at 522 (opinion concurring in judgment). Justice SCALIA explained that "[t]he struggle for racial justice has historically been a struggle by the national society against oppression in the individual States," because of the "heightened danger of oppression from political factions in small, rather than large, political units." Id. at 522, 523. [n14]
We hold that the FCC minority ownership policies pass muster under the test we announce today. First, we find that they serve the important governmental objective of broadcast diversity. Second, we conclude that they are substantially related to the achievement of that objective.
Congress found that
the effects of past inequities stemming from racial and ethnic discrimination have resulted in a severe underrepresentation of minorities in the media of mass communications.
H.R. Conf.Rep. No. 97-765, p. 43 (1982), U.S. Code Cong. & Admin.News 1982, 2237, 2261, 2287. Congress and the Commission do not justify the minority ownership policies strictly as remedies for victims of this discrimination, however. Rather, Congress and the FCC have selected the minority ownership policies primarily to promote programming diversity, and they urge that such diversity is an important governmental objective that can serve as a constitutional basis for the preference policies. We agree.
We have long recognized that
[b]ecause of the scarcity of [electromagnetic] frequencies, the Government is permitted to put restraints on licensees in favor of others whose views [p567] should be expressed on this unique medium.
Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 390 (1969). The Government's role in distributing the limited number of broadcast licenses is not merely that of a "traffic officer," National Broadcasting Co. v. United States, 319 U.S. 190, 215 (1943); rather, it is axiomatic that broadcasting may be regulated in light of the rights of the viewing and listening audience, and that "the wildest possible dissemination of information from diverse and antagonistic sources is essential to the welfare of the public." Associated Press v. United States, 326 U.S. 1, 20 (1945). Safeguarding the public's right to receive a diversity of views and information over the airwaves is therefore an integral component of the FCC's mission. We have observed that "‘the "public interest" standard necessarily invites reference to First Amendment principles,'" FCC v. National Citizens Committee for Broadcasting, 436 U.S. 775, 795 (1978), quoting Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U.S. 94, 122 (1973), and that the Communications Act has designated broadcasters as "fiduciaries for the public." FCC v. League of Women Voters of California, 468 U.S. 364, 377 (1984).
[T]he people as a whole retain their interest in free speech by radio [and other forms of broadcast] and their collective right to have the medium function consistently with the ends and purposes of the First Amendment,
and "[i]t is the right of the viewers and listeners, not the right of broadcasters, which is paramount." Red Lion, supra, 395 U.S. at 390.
Congress may . . . seek to assure that the public receives through this medium a balanced presentation of information on issues of public importance that otherwise might not be addressed if control of the medium were left entirely in the hands of those who own and operate broadcasting stations.
League of Women Voters, supra, 468 U.S. at 377.
Against this background, we conclude that the interest in enhancing broadcast diversity is, at the very least, an important governmental objective, and is therefore a sufficient [p568] basis for the Commission's minority ownership policies. Just as a "diverse student body" contributing to a "‘robust exchange of ideas'" is a "constitutionally permissible goal" on which a race-conscious university admissions program may be predicated, University of California Regents v. Bakke, 438 U.S. 265, 311-313 (1978) (opinion of Powell, J.), the diversity of views and information on the airwaves serves important First Amendment values. Cf. Wygant v. Jackson Board of Education, 476 U.S. 267, 314-315 (1986) (STEVENS, J., dissenting). [n15] The benefits of such diversity are not limited to the members of minority groups who gain access to the broadcasting industry by virtue of the ownership policies; rather, the benefits redound to all members of the viewing and listening audience. As Congress found, "the American public will benefit by having access to a wider diversity of information sources." H.R.Conf.Rep. No. 97-765, p. 45 (1982), U.S.Code Cong. & Admin.News 1982, 2289; see also Minority Ownership of Broadcast Stations: Hearing before the Subcommittee on Communications of the Senate Committee on Commerce, Science, and Transportation, 101st Cong., 1st Sess., 66 (1989) (testimony of Roderick Porter, Deputy Chief, Mass Media Bureau of the FCC) ("[T]he FCC's minority policies are based on our conclusion that the entire broadcast audience, regardless of its racial composition, will benefit"). [p569]
We also find that the minority ownership policies are substantially related to the achievement of the Government's interest. One component of this inquiry concerns the relationship between expanded minority ownership and greater broadcast diversity; both the FCC and Congress have determined that such a relationship exists. Although we do not "‘defer' to the judgment of the Congress and the Commission on a constitutional question," and would not "hesitate to invoke the Constitution should we determine that the Commission has not fulfilled its task with appropriate sensitivity" to equal protection principles, Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U.S. at 103, we must pay close attention to the expertise of the Commission and the factfinding of Congress when analyzing the nexus between minority ownership and programming diversity. With respect to this "complex" empirical question, ibid., we are required to give "great weight to the decisions of Congress and the experience of the Commission." Id. at 102.1
The FCC has determined that increased minority participation in broadcasting promotes programming diversity. As the Commission observed in its 1978 Statement of Policy on Minority Ownership of Broadcasting Facilities,
ownership of broadcasting facilities by minorities is [a] significant way of fostering the inclusion of minority views in the area of programming
[f]ull minority participation in the ownership and management of broadcast facilities results in a more diverse selection of programming.
68 F.C.C.2d at 981. Four years later, the FCC explained that it had taken "steps to enhance the ownership and participation of minorities in the media" in order to
increas[e] the diversity in the control of the media, and thus diversity in the selection of available programming, benefitting the public and serving the principle of the First Amendment.
Minority Ownership in Broadcasting, [p570] 92 F.C.C.2d at 849-850. See also Radio Jonesboro, Inc., 100 F.C.C.2d 941, 945, n. 9 (1985) ("‘[T]here is a critical underrepresentation of minorities in broadcast ownership, and full minority participation in the ownership and management of broadcast facilities is essential to realize the fundamental goals of programming diversity and diversification of ownership'") (citation omitted). The FCC's conclusion that there is an empirical nexus between minority ownership and broadcasting diversity is a product of its expertise, and we accord its judgment deference.
Furthermore, the FCC's reasoning with respect to the minority ownership policies is consistent with longstanding practice under the Communications Act. From its inception, public regulation of broadcasting has been premised on the assumption that diversification of ownership will broaden the range of programming available to the broadcast audience. [n16] Thus,
it is upon ownership that public policy places [p571] primary reliance with respect to diversification of content, and that historically has proved to be significantly influential with respect to editorial comment and the presentation of news.
TV 9, Inc., 161 U.S.App.D.C. at 358, 495 F.2d at 938. The Commission has never relied on the market alone to ensure that the needs of the audience are met. Indeed, one of the FCC's elementary regulatory assumptions is that broadcast content is not purely market-driven; if it were, there would be little need for consideration in licensing decisions of such factors as integration of ownership and management, local residence, and civic participation. In this vein, the FCC has compared minority preferences to local residence and other integration credits:
[B]oth local residence and minority ownership are fundamental considerations in our licensing scheme. Both policies complement our concern with diversification of control of broadcast ownership. Moreover, similar assumptions underlie both policies. We award enhancement credit for local residence because . . . [i]t is expected that [an] increased knowledge of the community of license will be reflected in a station's programming. Likewise, credit for minority ownership and participation is awarded in a comparative proceeding [because] "minority ownership is likely to increase diversity of content, especially of opinion and viewpoint."
Radio Jonesboro, Inc., supra, at 945 (footnotes omitted). [p572]2
Congress also has made clear its view that the minority ownership policies advance the goal of diverse programming. In recent years, Congress has specifically required the Commission, through appropriations legislation, to maintain the minority ownership policies without alteration. See n. 9, supra. We would be remiss, however, if we ignored the long history of congressional support for those policies prior to the passage of the appropriations acts because, for the past two decades, Congress has consistently recognized the barriers encountered by minorities in entering the broadcast industry and has expressed emphatic support for the Commission's attempts to promote programming diversity by increasing minority ownership. Limiting our analysis to the immediate legislative history of the appropriations acts in question "would erect an artificial barrier to [a] full understanding of the legislative process." Fullilove v. Klutznick, 448 U.S. at 502 (Powell, J., concurring). The
special attribute [of Congress] as a legislative body lies in its broader mission to investigate and consider all facts and opinions that may be relevant to the resolution of an issue. One appropriate source is the information and expertise that Congress acquires in the consideration and enactment of earlier legislation. After Congress has legislated repeatedly in an area of national concern, its Members gain experience that may reduce the need for fresh hearings or prolonged debate when Congress again considers action in that area.
Id. at 502-503; see also id. at 478 (opinion of Burger, C.J.) ("Congress, of course, may legislate without compiling the kind of ‘record' appropriate with respect to judicial or administrative proceedings").
Congress's experience began in 1969, when it considered a bill that would have eliminated the comparative hearing in license renewal proceedings, in order to avoid "the filing of a [p573] multiplicity of competing applications, often from groups unknown" and to restore order and predictability to the renewal process to "give the current license holder the benefit of the doubt warranted by his previous investment and experience." 115 Cong.Rec. 14813 (1969) (letter of Sen. Scott). Congress heard testimony that, because the most valuable broadcast licenses were assigned many years ago, comparative hearings at the renewal stage afford an important opportunity for excluded groups, particularly minorities, to gain entry into the industry. [n17] Opponents warned that the bill would "exclude minority groups from station ownership in important markets" by "fr[eezing]" the distribution of existing licenses. [n18] Congress rejected the bill.
Congress confronted the issue again in 1973 and 1974, when congressional committees held extensive hearings on proposals to extend the broadcast license period from three to five years and to modify the comparative hearing process for license renewals. Witnesses reiterated that renewals provided a valuable opportunity for minorities to obtain a foothold in the industry. [n19] The proposals were never enacted, and the renewal process was left intact. [p574]
During 1978, both the FCC and the Office of Telecommunications Policy presented their views to Congress as it considered a bill to deregulate the broadcast industry. The proposed Communications Act of 1978 would have, among other things, replaced comparative hearings with a lottery and created a fund for minorities who sought to purchase stations. As described by Representative Markey, the measure was intended to increase
the opportunities for blacks and women and other minorities in this country to get into the communications systems in this country so that their point of view and their interests can be represented.
The Communications Act of 1978: Hearings on H.R. 13015 before the Subcommittee on Communications of the House Committee on Interstate and Foreign Commerce, 95th Cong., 2d Sess., vol. 5, pt. 1, p. 59 (1978). The bill's sponsor, Representative Van Deerlin, stated,
It was the hope, and with some reason the expectation of the framers of the bill, that the most effective way to reach the inadequacies of the broadcast industry in employment and programming would be by doing something at the top, that is, increasing minority ownership and management and control in broadcast stations.
Id. vol. 3, at 698.
The Executive Branch objected to the lottery proposal on the ground that it would harm minorities by eliminating the credit granted under the comparative hearing scheme as developed by the FCC. See id. at 50. Although it acknowledged that a lottery could be structured to alleviate that concern by attributing a weight to minority ownership, see id. at 85, the Executive Branch explained that it preferred to [p575] grant credit for minority ownership during comparative hearings as a more finely tuned way of achieving the Communication Act's goal of broadcast diversity. See ibid. (contending that a lottery would not take into account the individual needs of particular communities).
Although no lottery legislation was enacted that year, Congress continued to explore the idea, [n20] and when, in 1981, it ultimately authorized a lottery procedure, Congress established a concomitant system of minority preferences. See Omnibus Budget Reconciliation Act of 1981, Pub.L. 9735, 95 Stat. 357, 736-737. The Act provided that, where more than one application for an initial license or construction permit was received, the Commission could grant the license or permit to a qualified applicant "through the use of a system of random selection," 47 U.S.C. § 309(i)(1) (1982 ed.), so long as the FCC adopted rules to ensure "significant preferences" in the lottery process to groups underrepresented in the ownership of telecommunications facilities. § 309(i)(3)(A). The accompanying Conference Report announced Congress's "firm intention" to award a lottery preference to minorities and other historically underrepresented groups, so that "the objective of increasing the number of media outlets owned by such persons or groups [would] be met." H.R.Conf.Rep. No. 97208, 897 (1981), U.S.Code Cong. & Admin. News 1981, 396, 1010, 1259. After the FCC complained of the difficulty of defining "underrepresented" groups and raised other problems concerning the statute, [n21] Congress enacted a second lottery statute reaffirming its intention in unmistakable terms. Section 115 of the Communications Amendments [p576] Act of 1982, Pub.L. 97-259, 96 Stat. 1094 (amending 47 U.S.C. § 309(i) (1982 ed.)), directs that, in any random selection lottery conducted by the FCC, a preference is to be granted to every applicant whose receipt of a license would increase the diversification of mass media ownership and that,
[t]o further diversify the ownership of the media of mass communications, an additional significant preference [is to be given] to any applicant controlled by a member or members of a minority group.
47 U.S.C. § 309(i)(3)(A) (1982 ed.). Observing that the nexus between ownership and programming "has been repeatedly recognized by both the Commission and the courts," Congress explained that it sought "to promote the diversification of media ownership and consequent diversification of programming content," a principle that "is grounded in the First Amendment." H.R.Conf.Rep. No. 97-765, p. 40 (1982), U.S.Code Cong. & Admin.News 1982, 2284. With this new mandate from Congress, the Commission adopted rules to govern the use of a lottery system to award licenses for low power television stations. [n22]
The minority ownership issue returned to the Congress in October, 1986, [n23] when a House subcommittee held a hearing to examine the Commission's inquiry into the validity of its minority ownership policies. The subcommittee chair expressed his view that
[t]he most important message of this [p577] hearing today is that the Commission must not dismantle these longstanding diversity policies, which Congress has repeatedly endorsed, until such time as Congress or the courts direct otherwise.
Minority-Owned Broadcast Stations: Hearing on H.R. 5373 before the Subcommittee on Telecommunications, Consumer Protection, and Finance of the House Committee on Energy and Commerce, 99th Cong., 2d Sess., 13 (1986) (Rep. Wirth). After the Commission issued an order holding in abeyance, pending completion of the inquiry, actions on licenses and distress sales in which a minority preference would be dispositive, [n24] a number of bills proposing codification of the minority ownership policies were introduced in Congress. [n25] Members of Congress questioned representatives of the FCC during hearings over a span of six months in 1987 with respect to the FCC appropriation for fiscal year 1988, [n26] legislation to reauthorize the Commission for fiscal years 1988 and 1989, [n27] and legislation to codify the Commission's minority ownership policies. [n28] [p578]
Ultimately, Congress chose to employ its appropriations power to keep the FCC's minority ownership policies in place for fiscal year 1988. [n29] See supra at 560. The report of the originating Committee on Appropriations explained:
The Congress has expressed its support for such policies in the past, and has found that promoting diversity of ownership of broadcast properties satisfies important public policy goals. Diversity of ownership results in diversity of programming and improved service to minority and women audiences.
S.Rep. No. 100-182, p. 76 (1987). The Committee recognized the continuity of congressional action in the field of minority ownership policies, noting that,
[i]n approving a lottery system for the selection of certain broadcast licensees, Congress explicitly approved the use of preferences to promote minority and women ownership.
Id. at 76-77.
Congress has twice extended the prohibition on the use of appropriated funds to modify or repeal minority ownership policies, [n30] and has continued to focus upon the issue. For example, in the debate on the fiscal year 1989 legislation, Senator Hollings, chair of both the authorizing committee and the appropriations subcommittee for the FCC, presented to the Senate a summary of a June, 1988, report prepared by the Congressional Research Service (CRS), entitled Minority [p579] Broadcast Station Ownership and Broadcast Programming: Is There a Nexus? The study, Senator Hollings reported, "clearly demonstrates that minority ownership of broadcast stations does increase the diversity of viewpoints presented over the airwaves." 134 Cong. Rec. S10021 (July 27, 1988).
As revealed by the historical evolution of current federal policy, both Congress and the Commission have concluded that the minority ownership programs are critical means of promoting broadcast diversity. We must give great weight to their joint determination
The judgment that there is a link between expanded minority ownership and broadcast diversity does not rest on impermissible stereotyping. Congressional policy does not assume that, in every case, minority ownership and management will lead to more minority-oriented programming or to the expression of a discrete "minority viewpoint" on the airwaves. Neither does it pretend that all programming that appeals to minority audiences can be labeled "minority programming," or that programming that might be described as "minority" does not appeal to nonminorities. Rather, both Congress and the FCC maintain simply that expanded minority ownership of broadcast outlets will, in the aggregate, result in greater broadcast diversity. A broadcasting industry with representative minority participation will produce more variation and diversity than will one whose ownership is drawn from a single racially and ethnically homogeneous group. The predictive judgment about the overall result of minority entry into broadcasting is not a rigid assumption about how minority owners will behave in every case, but rather is akin to Justice Powell's conclusion in Bakke that greater admission of minorities would contribute, on average, "to the ‘robust exchange of ideas.'" 438 U.S. at 313. To be sure, there is no iron-clad guarantee that each minority owner will contribute to diversity. But neither was there an [p580] assurance in Bakke that minority students would interact with nonminority students or that the particular minority students admitted would have typical or distinct "minority" viewpoints. See id. at 312 (opinion of Powell, J.) (noting only that educational excellence is "widely believed to be promoted by a diverse student body") (emphasis added); id. at 313, n. 48 ("‘In the nature of things, it is hard to know how, and when, and even if, this informal "learning through diversity" actually occurs"') (citation omitted).
Although all station owners are guided to some extent by market demand in their programming decisions, Congress and the Commission have determined that there may be important differences between the broadcasting practices of minority owners and those of their nonminority counterparts. This judgment -- and the conclusion that there is a nexus between minority ownership and broadcasting diversity -- is corroborated by a host of empirical evidence. [n31] Evidence [p581] suggests that an owner's minority status influences the selection of topics for news coverage and the presentation of editorial viewpoint, especially on matters of particular concern to minorities. "[M]inority ownership does appear to have specific impact on the presentation of minority images in local news," [n32] inasmuch as minority-owned stations tend to devote more news time to topics of minority interest and to avoid racial and ethnic stereotypes in portraying minorities. [n33] In addition, studies show that a minority owner is more likely to employ minorities in managerial and other important roles [p582] where they can have an impact on station policies. [n34] If the FCC's equal employment policies "ensure that . . . licensees' programming fairly reflects the tastes and viewpoints of minority groups," NAACP v. FPC, 425 U.S. at 670, n. 7, it is difficult to deny that minority-owned stations that follow such employment policies on their own will also contribute to diversity. While we are under no illusion that members of a particular minority group share some cohesive, collective viewpoint, we believe it a legitimate inference for Congress and the Commission to draw that, as more minorities gain ownership and policymaking roles in the media, varying perspectives will be more fairly represented on the airwaves. The policies are thus a product of "‘analysis'" rather than [p583] a "‘stereotyped reaction'" based on "‘[h]abit.'" Fullilove, 448 U.S. at 534, n. 4 (STEVENS, J., dissenting) (citation omitted).
Our cases demonstrate that the reasoning employed by the Commission and Congress is permissible. We have recognized, for example, that the fair cross-section requirement of the Sixth Amendment forbids the exclusion of groups on the basis of such characteristics as race and gender from a jury venire because,
[w]ithout that requirement, the State could draw up jury lists in such manner as to produce a pool of prospective jurors disproportionately ill-disposed towards one or all classes of defendants, and thus more likely to yield petit juries with similar disposition.
Holland v. Illinois, 493 U.S. 474, 480-481 (1990). It is a small step from this logic to the conclusion that including minorities in the electromagnetic spectrum will be more likely to produce a "fair cross section" of diverse content. Cf. Duren v. Missouri, 439 U.S. 357, 358-359, 363-364 (1979); Taylor v. Louisiana, 419 U.S. 522, 531-533 (1975). [n35] In addition, many of our voting rights cases operate on the assumption that minorities have particular viewpoints and interests worthy of protection. We have held, for example, that, in safeguarding the "‘effective exercise of the electoral franchise'" by racial minorities, United Jewish Organizations v. Carey, 430 U.S. 144, 159 (1977) (plurality opinion), quoting Beer v. United States, 425 U.S. 130, 141 (1976), "[t]he permissible use of racial criteria is not confined to eliminating [p584] the effects of past discriminatory districting or apportionment." 430 U.S. at 161. Rather, a State subject to § 5 of the Voting Rights Act of 1965, 79 Stat. 439, as amended, 42 U.S.C. § 1973c may "deliberately creat[e] or preserv[e] black majorities in particular districts in order to ensure that its reapportionment plan complies with § 5"; "neither the Fourteenth nor the Fifteenth Amendment mandates any per se rule against using racial factors in districting and apportionment." 430 U.S. at 161.
We find that the minority ownership policies are in other relevant respects substantially related to the goal of promoting broadcast diversity. First, the Commission adopted and Congress endorsed minority ownership preferences only after long study and painstaking consideration of all available alternatives. See Fullilove, 448 U.S. at 463-467 (opinion of Burger, C.J.); id. at 511 (Powell, J., concurring). For many years, the FCC attempted to encourage diversity of programming content without consideration of the race of station owners. [n36] When it first addressed the issue, in a 1946 [p585] report entitled Public Service Responsibility of Broadcast Licensees (Blue Book), the Commission stated that, although licensees bore primary responsibility for program service,
[i]n issuing and in renewing the licenses of broadcast stations, the Commission [would] give particular consideration to four program service factors relevant to the public interest.
Id. at 55. [n37] In 1960, the Commission altered course somewhat, announcing that
the principal ingredient of the licensee's obligation to operate his station in the public interest is the diligent, positive and continuing effort . . . to discover and fulfill the tastes, needs, and desires of his community or service area for broadcast service.
Network Programming Inquiry, Report and Statement of Policy, 25 Fed.Reg. 7295 (1960). Licensees were advised that they could meet this obligation in two ways: by canvassing members of the listening public who could receive the station's signal and by meeting with "leaders in community life . . . and others who bespeak the interests which make up the community." Id. at 7296.
By the late 1960's, it had become obvious that these efforts had failed to produce sufficient diversity in programming. The Kerner Commission, for example, warned that the various elements of the media [p586]
have not communicated to whites a feeling for the difficulties and frustrations of being a Negro in the United States. They have not shown understanding or appreciation of -- and thus have not communicated -- a sense of Negro culture, thought, or history. . . . The world that television and newspapers offer to their black audience is almost totally white. . . .
Report of the National Advisory Commission on Civil Disorders 210 (1968). In response, the Commission promulgated equal employment opportunity regulations, see supra at 554-555, and formal "ascertainment" rules requiring a broadcaster as a condition of license "to ascertain the problems, needs and interests of the residents of his community of license and other areas he undertakes to serve," and to specify "what broadcast matter he proposes to meet those problems, needs and interests." Primer on Ascertainment of Community Problems by Broadcast Applicants, 27 F.C.C.2d 650, 682 (1971). [n38] The Commission [p587] explained that, although it recognized there was "no single answer for all stations," it expected each licensee to devote a "‘significant proportion'" of a station's programming to community concerns. Id. at 686 (citation omitted). [n39] The Commission expressly included "minority and ethnic groups" as segments of the community that licensees were expected to consult. See, e.g., Ascertainment of Community Problems by Broadcast Applicants, 57 F.C.C.2d 418, 419, 442 (1976); Ascertainment of Community Problems by Noncommercial Educational Broadcast Applicants, 54 F.C.C.2d 766, 767, 775, 776 (1975). The FCC held that a broadcaster's failure to ascertain and serve the needs of sizable minority groups in its service area was, in itself, a failure of licensee responsibility, regardless of any intent to discriminate, and was a sufficient ground for the nonrenewal of a license. See, e.g., Chapman Radio and Television Co., 24 F.C.C.2d 282, 286 (1970). The Commission observed that
[t]he problems of minorities must be taken into consideration by broadcasters in planning their program schedules to meet the needs and interests of the communities they are licensed to serve.
Time-Life Broadcast, Inc., 33 F.C.C.2d 1081, 1093 (1972); see also Mahoning Valley Broadcasting Corp., 39 F.C.C.2d 52, 58 (1972); WKBN Broadcasting Corp., 30 F.C.C.2d 958, 970 (1971). Pursuant to this policy, for example, the Commission refused to renew licenses for eight educational stations in Alabama and denied an application for a construction permit for a ninth, all on the ground that the licensee
did not take the trouble to inform itself of the needs and interests of a minority group consisting of 30 percent of the population of the State of Alabama
and that such a failure was
fundamentally irreconcilable with the obligations which the Communications Act places upon those who receive authorizations to use the airwaves.
Alabama Educational Television Comm'n, 50 F.C.C.2d 461, 472, 473 (1975), citing Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1969). The Commission's ascertainment policy was not static; in order to facilitate application of the ascertainment requirement, the Commission devised a community leader checklist consisting [p588] of 19 groups and institutions commonly found in local communities, see 57 F.C.C.2d at 418-419, and it continued to consider improvements to the ascertainment system. See, e.g., Amendment of Primers on Ascertainment of Community Problems by Commercial Broadcast Renewal Applicants and Noncommercial Educational Broadcast Applicants, Permittees and Licensees, 47 Radio Reg.2d (P & F) 189 (1980).
By 1978, however, the Commission had determined that even these efforts at influencing broadcast content were not effective means of generating adequate programming diversity. The FCC noted that,
[w]hile the broadcasting industry has, on the whole, responded positively to its ascertainment obligations, and has made significant strides in its employment practices, we are compelled to observe that the views of racial minorities continue to be inadequately represented in the broadcast media.
Minority Ownership Statement, 68 F.C.C.2d at 980 (footnotes omitted). As support, the Commission cited a report by the United States Commission on Civil Rights, which found that minorities
are underrepresented on network dramatic television programs and on the network news. When they do appear, they are frequently seen in token or stereotyped roles.
Window Dressing on the Set 3 (Aug.1977). The Commission concluded that,
despite the importance of our equal employment opportunity rules and ascertainment policies in assuring diversity of programming, it appears that additional measures are necessary and appropriate. In this regard, the Commission believes that ownership of broadcast facilities by minorities is another significant way of fostering the inclusion of minority views in the area of programming.
68 F.C.C.2d at 981; see also Commission Policy Regarding Advancement of Minority Ownership in Broadcasting, 92 F.C.C.2d 849, 850 (1982) ("[I]t became apparent that, in order to broaden minority voices and spheres of influence over the airwaves, additional [p589] measures were necessary" beyond the equal employment and ascertainment rules). [n40]
In short, the Commission established minority ownership preferences only after long experience demonstrated that race-neutral means could not produce adequate broadcasting diversity. [n41] The FCC did not act precipitately in devising the programs we uphold today; to the contrary, the Commission undertook thorough evaluations of its policies three times -- in 1960, 1971, and 1978 -- before adopting the minority ownership programs. [n42] In endorsing the minority ownership [p590] preferences, Congress agreed with the Commission's assessment that race-neutral alternatives had failed to achieve the necessary programming diversity. [n43] [p591]
Moreover, the considered nature of the Commission's judgment in selecting the particular minority ownership policies at issue today is illustrated by the fact that the Commission [p592] has rejected other types of minority preferences. For example, the Commission has studied, but refused to implement, the more expansive alternative of setting aside certain frequencies for minority broadcasters. See Nighttime Operations on Clear Channels, 3 F.C.C.Rcd 3597, 3599-3600 (1988); Deletion of AM Acceptance Criteria, 102 F.C.C.2d 548, 555-658 (1985); Clear Channel Broadcasting, 78 F.C.C.2d 1345, reconsideration denied, 83 F.C.C.2d 216, 218-219 (1980), aff'd sub nom. Loyola University v. FCC, 216 U.S.App.D.C. 403, 670 F.2d 1222 (1982). In addition, in a ruling released the day after it adopted the comparative hearing credit and the distress sale preference, the FCC declined to adopt a plan to require 45-day advance public notice before a station could be sold, which had been advocated on the ground that it would ensure minorities a chance to bid on stations that might otherwise be sold to industry insiders without ever coming on the market. See 43 Fed.Reg. 24560 (1978). [n44] Soon afterward, the Commission rejected [p593] other minority ownership proposals advanced by the Office of Telecommunications Policy and the Department of Commerce that sought to revise the FCC's time brokerage, multiple ownership, and other policies. [n45]
The minority ownership policies, furthermore, are aimed directly at the barriers that minorities face in entering the broadcasting industry. The Commission's Task Force identified as key factors hampering the growth of minority ownership a lack of adequate financing, paucity of information regarding license availability, and broadcast inexperience. See Task Force Report, at 8-29; Advisory Committee on Alternative Financing for Minority Opportunities in Telecommunications, Final Report, Strategies for Advancing Minority Ownership Opportunities 25-30 (May 1982). The Commission assigned a preference to minority status in the comparative licensing proceeding, reasoning that such an enhancement might help to compensate for a dearth of broadcasting experience. Most license acquisitions, however, are by necessity purchases of existing stations, because only a limited number of new stations are available, and those are often in less desirable markets or on less profitable portions [p594] of spectrum, such as the UHF band. [n46] Congress and the FCC therefore found a need for the minority distress sale policy, which helps to overcome the problem of inadequate access to capital by lowering the sale price and the problem of lack of information by providing existing licensees with an incentive to seek out minority buyers. The Commission's choice of minority ownership policies thus addressed the very factors it had isolated as being responsible for minority underrepresentation in the broadcast industry.
The minority ownership policies are "appropriately limited in extent and duration, and subject to reassessment and reevaluation by the Congress prior to any extension or reenactment." Fullilove, 448 U.S. at 489 (opinion of Burger, C.J.) (footnote omitted). Although it has underscored emphatically its support for the minority ownership policies, Congress has manifested that support through a series of appropriations acts of finite duration, thereby ensuring future reevaluations of the need for the minority ownership program as the number of minority broadcasters increases. In addition, Congress has continued to hold hearings on the subject of minority ownership. [n47] The FCC has noted with [p595] respect to the minority preferences contained in the lottery statute, 47 U.S.C. § 309(i)(3)(A) (1982 ed.), that Congress instructed the Commission to
report annually on the effect of the preference system and whether it is serving the purposes intended. Congress will be able to further tailor the program based on that information, and may eliminate the preferences when appropriate.
Amendment of Commission's Rules to Allow Selection from Among Certain Competing Applications Using Random Selection or Lotteries Instead of Comparative Hearings, 93 F.C.C.2d 952, 974 (1983). Furthermore, there is provision for administrative and judicial review of all Commission decisions, which guarantees both that the minority ownership policies are applied correctly in individual cases, [n48] and that there will be frequent [p596] opportunities to revisit the merits of those policies. Congress and the Commission have adopted a policy of minority ownership not as an end in itself, but rather as a means of achieving greater programming diversity. Such a goal carries its own natural limit, for there will be no need for further minority preferences once sufficient diversity has been achieved. The FCC's plan, like the Harvard admissions program discussed in Bakke, contains the seed of its own termination. Cf. Johnson v. Transportation Agency, Santa Clara County, Cal., 480 U.S. 616, 640 (1987) (agency's "express commitment to ‘attain' a balanced workforce" ensures that plan will be of limited duration).
Finally, we do not believe that the minority ownership policies at issue impose impermissible burdens on nonminorities. [n49] Although the nonminority challengers in these cases concede that they have not suffered the loss of an already-awarded broadcast license, they claim that they have been handicapped in their ability to obtain one in the first instance. But just as we have determined that,
[a]s part of this Nation's dedication to eradicating racial discrimination, innocent persons may be called upon to bear some of the burden of the remedy,
Wygant, 476 U.S. at 280-281 (opinion of Powell, J.), we similarly find that a congressionally mandated, benign [p597] race-conscious program that is substantially related to the achievement of an important governmental interest is consistent with equal protection principles so long as it does not impose undue burdens on nonminorities. Cf. Fullilove, 448 U.S. at 484 (opinion of Burger, C.J.) ("It is not a constitutional defect in this program that it may disappoint the expectations of nonminority firms. When effectuating a limited and properly tailored remedy to cure the effects of prior discrimination, such ‘a sharing of the burden' by innocent parties is not impermissible") (citation omitted); id. at 521 (MARSHALL, J., concurring in judgment).
In the context of broadcasting licenses, the burden on nonminorities is slight. The FCC's responsibility is to grant licenses in the "public interest, convenience, or necessity," 47 U.S.C. §§ 307 309 (1982 ed.), and the limited number of frequencies on the electromagnetic spectrum means that "[n]o one has a First Amendment right to a license." Red Lion, 395 U.S. at 389. Applicants have no settled expectation that their applications will he granted without consideration of public interest factors such as minority ownership. Award of a preference in a comparative hearing or transfer of a station in a distress sale thus contravenes "no legitimate firmly rooted expectation[s]" of competing applicants. Johnson, supra, 480 U.S. at 638.
Respondent Shurberg insists that, because the minority distress sale policy operates to exclude nonminority firms completely from consideration in the transfer of certain stations, it is a greater burden than the comparative hearing preference for minorities, which is simply a "plus" factor considered together with other characteristics of the applicants. [n50] Cf. Bakke, 438 U.S. at 317-318; Johnson, supra [p598] at 638. We disagree that the distress sale policy imposes an undue burden on nonminorities. By its terms, the policy may be invoked at the Commission's discretion only with respect to a small fraction of broadcast licenses -- those designated for revocation or renewal hearings to examine basic qualification issues -- and only when the licensee chooses to sell out at a distress price rather than to go through with the [p599] hearing. The distress sale policy is not a quota or fixed quantity set-aside. Indeed, the nonminority firm exercises control over whether a distress sale will ever occur at all, because the policy operates only where the qualifications of an existing licensee to continue broadcasting have been designated for hearing and no other applications for the station in question have been filed with the Commission at the time of the designation. See Clarification of Distress Sale Policy, 44 Radio Reg.2d (P & F) 479 (1978). Thus, a nonminority can prevent the distress sale procedures from ever being invoked by filing a competing application in a timely manner. [n51]
In practice, distress sales have represented a tiny fraction -- less than four tenths of one percent -- of all broadcast sales since 1979. See Brief for Federal Communications Commission in No. 89-700, p. 44. There have been only 38 distress sales since the policy was commenced in 1978. See A. Barrett, Federal Communications Commission, Minority Employment and Ownership in the Communications Market: What's Ahead in the 90's?, p. 7 (Address to the Bay Area Black [p600] Media Conference, San Francisco, April 21, 1990). This means that, on average, only about .20 percent of renewal applications filed each year have resulted in distress sales since the policy was commenced in 1978. See 54 FCC Ann. Rep. 33 (1988). [n52] Nonminority firms are free to compete for the vast remainder of license opportunities available in a market that contains over 11,000 broadcast properties. Nonminorities can apply for a new station, buy an existing station, file a competing application against a renewal application of an existing station, or seek financial participation in enterprises that qualify for distress sale treatment. See Task Force Report, at 9-10. The burden on nonminority firms is at least as "relatively light" as that created by the program at issue in Fullilove, which set aside for minorities 10 percent of federal funds granted for local public works projects. 448 U.S. at 484 (opinion of Burger, C.J.); see also id. at 485, n. 72.
The Commission's minority ownership policies bear the imprimatur of longstanding congressional support and direction, and are substantially related to the achievement of the important governmental objective of broadcast diversity. The judgment in [p601] No. 89-453 is affirmed, the judgment in No. 89-700 is reversed, and the cases are remanded for proceedings consistent with this opinion.
It is so ordered.
1. The FCC has defined the term "minority" to include "those of Black, Hispanic Surnamed, American Eskimo, Aleut, American Indian and Asiatic American extraction." Statement of Policy on Minority Ownership of Broadcasting Facilities, 68 F.C.C.2d 979, 980, n. 8 (1978). See also Commission Policy Regarding Advancement of Minority Ownership in Broadcasting, 92 F.C.C.2d 849, 849, n. 1 (1982), citing 47 U.S.C. § 309(i)(3)(C) (1982 ed.).
2. See Task Force Report, at l; Wimmer, Deregulation and Market Failure in Minority Programming: The Socioeconomic Dimensions of Broadcast Reform, 8 Comm/Ent L.J. 329, 426, n. 516 (1986). See also n. 46, infra.
3. See, e.g., Nondiscrimination Employment Practices of Broadcast Licensees, 18 F.C.C.2d 240 (1969); Nondiscrimination Employment Practices of Broadcast Licensees, 23 F.C.C.2d 430 (1970); Nondiscrimination in Employment Policies and Practices of Broadcast Licensees, 54 F.C.C.2d 354 (1975); Nondiscrimination in Employment Policies and Practices of Broadcast Licensees, 60 F.C.C.2d 226 (1976). The FCC's current equal employment opportunity policy is outlined at 47 CFR § 73.2080 (1989).
4. See Telecommunications Minority Assistance Program, Public Papers of the Presidents, Jimmy Carter, vol. 1, Jan. 31, 1978, pp. 252, 253 (1979). The petition observed that "[m]inority ownership markedly serves the public interest, for it ensures the sustained and increased sensitivity to minority audiences." Id. at 252. See also n. 45, infra.
5. In Ashbacker Radio Corp. v. FCC, 326 U.S. 327 (1945), we held that when the Commission was faced with two "mutually exclusive" bona fide applications for license -- that is, two proposed stations that would be incompatible technologically -- it was obligated to set the applications for a comparative hearing. See id. at 333.
6. In 1982, the FCC determined that a limited partnership could qualify as a minority enterprise if the general partner is a minority who holds at least a 20 percent interest and who will exercise "complete control over a station's affairs." 92 F.C.C.2d at 855.
7. The FCC also announced in its 1978 statement a tax certificate policy and other minority preferences, see 68 F.C.C.2d at 983 and n. 19; 92 F.C.C.2d at 850-851, which are not at issue today. Similarly, the Commission's gender preference policy, see Gainesville Media Inc., 70 F.C.C.2d 143, 149 (Rev.Bd.1978); Mid-Florida Television Corp., 69 F.C.C.2d 607, 651-652 (Rev. Bd.1978), set aside on other grounds, 87 F.C.C.2d 203 (1981), is not before us today. See Winter Park Communications, Inc. v. FCC, 277 U.S.App.D.C. 134, 139-140, n. 5, 873 F.2d 347, 352-353, n. 5 (1989); Metro Broadcasting, Inc., 3 F.C.C.Rcd 866, 867, n. 1 (1988).
8. That inquiry grew out of the Court of Appeals' decision in Steele v. FCC, 248 U.S.App.D.C. 279 770 F.2d 1192 (1985), in which a panel of the Court of Appeals held that the FCC lacks statutory authority to grant enhancement credits in comparative license proceedings to women owners. Although the panel expressly stated that "[u]nder our decisions, the Commission's authority to adopt minority preferences . . . is clear," id. at 283, 770 F.2d at 1196, the Commission believed that the court's opinion nevertheless raised questions concerning its minority ownership policies. After the en banc court vacated the panel opinion and set the case for rehearing, the FCC requested that the Court of Appeals remand the case without considering the merits to allow the FCC to reconsider the basis of its preference policy. The request was granted. The Commission, "despite its prior misgivings, has now indicated clearly that it supports the distress sale" and other minority ownership policies, Shurberg Broadcasting of Hartford, Inc. v. FCC, 278 U.S.App.D.C. 24, 81, 876 F.2d 902, 959 (1989) (Wald, C.J., dissenting from denial of rehearing en banc), and has defended them before this Court.
9. The appropriations legislation provided:
That none of the funds appropriated by this Act shall be used to repeal, to retroactively apply changes in, or to continue a reexamination of, the policies of the Federal Communications Commission with respect to comparative licensing, distress sales and tax certificates granted under 26 U.S.C. § 1071 to expand minority and women ownership of broadcasting licenses, including those established in Statement of Policy On Minority Ownership of Broadcast Facilities, 68 F.C.C.2d 979 and 69 F.C.C.2d 1591, as amended, 52 R.R.2d  (1982), and Mid-Florida Television Corp.,  F.C.C.2d 607 Rev.Bd. (1978), which were effective prior to September 12, 1986, other than to close MM Docket No. 86-484 with a reinstatement of prior policy and a lifting of suspension of any sales, licenses, applications, or proceedings which were suspended pending the conclusion of the inquiry.
Continuing Appropriations Act for Fiscal Year 1988, Pub.L. 100-202, 101 Stat. 1329-31.
10. Mr. Shurberg is the sole owner of Shurberg Broadcasting of Hartford, Inc., respondent in No. 89-700.
11. Justice O'CONNOR's suggestion that the deference to Congress described in Fullilove rested entirely on Congress' powers under § 5 of the Fourteenth Amendment, post at 606-607, is simply incorrect. The Chief Justice expressly noted that, in enacting the provision at issue, "Congress employed an amalgam of its specifically delegated powers." 448 U.S. at 473.
12. We fail to understand how Justice KENNEDY can pretend that examples of "benign" race-conscious measures include South African apartheid, the "separate-but-equal" law at issue in Plessy v. Ferguson, 163 U.S. 537 (1896), and the internment of American citizens of Japanese ancestry upheld in Korematsu v. United States, 323 U.S. 214 (1944). We are confident that an "examination of the legislative scheme and its history," Weinberger v. Wiesenfeld, 420 U.S. 636, 648, n. 16 (1975), will separate benign measures from other types of racial classifications. See, e.g., Mississippi University for Women v. Hogan, 458 U.S. 718, 728-730 (1982). Of course,
the mere recitation of a benign, compensatory purpose is not an automatic shield which protects against any inquiry into the actual purposes underlying a statutory scheme.
Weinberger, 420 U.S. at 648; see also Brest, Foreword: In Defense of the Antidiscrimination Principle, 90 Harv.L. Rev. 1, 21-22 (1976); Strauss, The Myth of Colorblindness, 1986 Sup.Ct.Rev. 99, 128-129. The concept of benign race-conscious measures -- even those with at least some nonremedial purposes -- is as old as the Fourteenth Amendment. For example, the Freedman's Bureau Acts authorized the provision of land, education, medical care, and other assistance to Afro-Americans. See, e.g., Cong. Globe, 39th Cong., 1st Sess., 630 (1866) (statement of Rep. Hubbard) ("I think that the nation will be a great gainer by encouraging the policy of the Freedman's Bureau, in the cultivation of its wild lands, in the increased wealth which industry brings and in the restoration of law and order in the insurgent States"). See generally Sandalow, Racial Preferences in Higher Education: Political Responsibility and the Judicial Role, 42 U.Chi.L. Rev. 653, 664-666 (1975); Schnapper, Affirmative Action and the Legislative History of the Fourteenth Amendment, 71 Va.L.Rev. 753, 754-783 (1985).
13. Justice O'CONNOR, in a passage joined by THE CHIEF JUSTICE and Justice WHITE, observed that the decision in Fullilove had been influenced by the fact that the set-aside program at issue was "‘congressionally mandated.'" 488 U.S. at 491 (citation omitted, emphasis in original). Justice O'CONNOR's opinion acknowledged that our decision in Fullilove regarding a congressionally approved preference "did not employ ‘strict scrutiny.'" 488 U.S. at 487.
14. See also id. at 495-496 (opinion of O'CONNOR, J.); Ely, The Constitutionality of Reverse Racial Discrimination, 41 U.Chi.L.Rev. 723, 728-735 (1974), cited with approval in Croson, 488 U.S. at 496.
15. In Wygant v. Jackson Board of Education, Justice O'CONNOR noted that,
although its precise contours are uncertain, a state interest in the promotion of racial diversity has been found sufficiently "compelling," at least in the context of higher education, to support the use of racial considerations in furthering that interest.
476 U.S. at 286 (opinion concurring in part and concurring in judgment). She further stated that
nothing the Court has said today necessarily forecloses the possibility that the Court will find other governmental interests which have been relied upon in the lower courts but which have not been passed on here to be sufficiently "important" or "compelling" to sustain the use of affirmative action policies.
Ibid. Compare post at 612 (O'CONNOR, J., dissenting).
16. For example, in 1953, the Commission promulgated the first of its multiple ownership rules, the "fundamental purpose" of which is "to promote diversification of ownership in order to maximize diversification of program and service viewpoints." Amendment of Sections 3.35, 3.240, and 3.636 of Rules and Regulations Relating to Multiple Ownership of AM, FM, and Television Broadcast Stations, Report and Order, 18 F.C.C. 288, 291. Initially, the multiple ownership rules limited only the common control of broadcast stations. The Commission's current rules include limitations on broadcast/newspaper cross-ownership, cable/television cross-ownership, broadcast service cross-ownership, and common control of broadcast stations. See 47 CFR §§ 73.3555, 76.501 (1989). The Commission has always focused on ownership, on the theory that
ownership carries with it the power to select, to edit, and to choose the methods, manner and emphasis of presentation, all of which are a critical aspect of the Commission's concern with the public interest.
Amendment of Sections 73.34, 73.240, and 73-636 of Commission's Rules Relating to Multiple Ownership of Standard, FM, and Television Broadcast Stations, Second Report and Order, 50 F.C.C.2d 1046, 1050 (1975); see also Amendment of Sections 73.35, 73.240, and 73.636 of Commission Rules Relating to Multiple Ownership of Standard, FM, and Television Broadcast Stations, First Report and Order, 22 F.C.C.2d 306, 307 (1970) (multiple ownership rules "promot[e] diversification of programming sources and viewpoints"); Amendment of Sections 73.35, 73.240, and 73.636 of Commission's Rules Relating to Multiple Ownership of Standard, FM, and Television Broadcast Stations, Report and Order, 45 F.C.C. 1476, 1477, 1482 (1964) ("the greater the diversity of ownership in a particular area, the less chance there is that a single person or group can have ‘an inordinate effect in a . . . programming sense, on public opinion at the regional level'"); Editorializing by Broadcast Licensees, 13 F.C.C. 1246, 1252 (1949) (ownership enables licensee "to insure that his personal viewpoint on any particular issue is presented in his station's broadcasts").
17. See Amend the Communications Act of 1934: Hearings on S. 2004 before the Subcommittee on Communications of the Senate Committee on Commerce, 91st Cong., 1st Sess., pt. 1, p. 128 (1969) (testimony of Earle Moore, National Citizens Committee for Broadcasting); id. pt. 2, at 520-521 (testimony of John Pamberton, American Civil Liberties Union); id. at 566-567 (testimony of David Batzka, United Christian Missionary Society); id. at 626-627 (testimony of William Hudgins, Freedom National Bank).
18. Id. at 642 (testimony of John McLaughlin, then associate editor of America magazine).
19. See Broadcast License Renewal: Hearings on H.R. 5546 et al. before the Subcommittee on Communications and Power of the House Committee on Interstate and Foreign Commerce, 93d Cong., 1st Sess., pt. 1, pp. 495-497 (1973) (testimony of William E. Hanks, Pittsburgh Community Coalition for Media Change); id. at 552-559 (testimony of Rev. George Brewer, Greater Dallas-Fort Worth Coalition for the Free Flow of Information); id. at 572-594 (testimony of James McCuller, Action for a Better Community, Inc.); id. pt. 2, at 686-689 (testimony of Morton Hamburg, adjunct assistant professor of communications law, New York University); Broadcast License Renewal Act: Hearings on S. 16 et al. before the Subcommittee on Communications of the Senate Committee on Commerce, 93d Cong., 2d Sess., pt. 1, pp. 325-329 (1974) (testimony of Ronald H. Brown, National Urban League); id. at 376-381 (testimony of Gladys T. Lindsay, Citizens Committee on Media); id. at 408-411 (testimony of Joseph L Rauh, Jr., Leadership Conference on Civil Rights and Americans for Democratic Action); id. pt. 2, at 785-800 (testimony of Manuel Fierro, Raza Association of Spanish Surnamed Americans).
20. For example, the proposed Communications Act of 1979 would have provided that any minority applicant for a previously unassigned license would be counted twice in the lottery pool. See Staff of the Subcommittee on Communications of the House Committee on Interstate and Foreign Commerce, H.R. 3333, "The Communications Act of 1979" Section-by-Section Analysis, 96th Cong., 1st Sess., 39-41 (Comm.Print 1979).
21. See Amendment of Part 1 of Commissions Rules to Allow Selection from Among Mutually Exclusive Competing Applications Using Random Selection or Lotteries Instead of Comparative Hearings, 89 F.C.C.2d 257, 277-284 (1982).
22. See Amendment of the Commission's Rules to Allow the Selection from Among Certain Competing Applications Using Random Selection or Lotteries Instead of Comparative Hearings, 93 F.C.C.2d 952 (1983).
23. The issue had surfaced briefly in the 98th Congress, where proposals to codify and expand the FCC's minority ownership policies were the subject of extensive hearings in the House. See Minority Participation in the Media: Hearings before the Subcommittee on Telecommunications, Consumer Protection, and Finance of the House Committee on Energy and Commerce, 98th Cong., 1st Sess. (1983); Parity for Minorities in the Media: Hearing on H.R. 1155 before the Subcommittee on Telecommunications, Consumer Protection, and Finance of the House Committee on Energy and Commerce, 98th Cong., 1st Sess. (1983); Broadcast Regulation and Station Ownership: Hearings on H.R. 6122 and H.R. 6134 before the Subcommittee on Telecommunications, Consumer Protection, and Finance of the House Committee on Energy and Commerce, 98th Cong., 2nd Sess. (1984). No legislation was passed.
24. See Notice of Inquiry on Racial Ethnic or Gender Classifications, 1 F.C.C.Rcd 1315, 1319 (1986), as amended, 2 F.C.C.Rcd 2377 (1987).
25. These bills recognized the link between minority ownership and diversity. In introducing S. 1095, for example, Senator Lautenberg explained that
[d]iversity of ownership does promote diversity of views. Minority . . . broadcasters serve a need that is not as well served as others. They address issues that others do not.
133 Cong.Rec. 9745 (1987); see also id. at 860 (H.R. 293); id. at 3300 (H.R. 1090); id. at 13742-13745 (S. 1277).
26. See Commerce, Justice, State, the Judiciary, and Related Agencies Appropriations for Fiscal Year 1988: Hearings on H.R. 2763 before a Subcommittee of the Senate Committee on Appropriations, 100th Cong., 1st Sess. (1987).
27. See FCC Authorization: Hearing before the Subcommittee on Communications of the Senate Committee on Commerce, Science, and Transportation, 100th Cong., 1st Sess., 55 (1987); FCC and NTIA Authorizations: Hearings on H.R. 2472 before the Subcommittee on Telecommunications and Finance of the House Committee on Energy and Commerce, 100th Cong., 1st Sess., 130-131, 211-212 (1987).
28. See Broadcasting Improvements Act of 1987: Hearings on S. 1277 before the Subcommittee on Communications of the Senate Committee on Commerce, Science, and Transportation, 100th Cong., 1st Sess., 51 (1987).
29. Congress did not simply direct a "kind of mental standstill," Winter Park, 277 U.S.App. D.C. at 151, 873 F.2d at 364 (Williams, J., concurring in part dissenting in part), but rather, in the appropriations legislation, expressed its unqualified support for the minority ownership policies and instructed the Commission in no uncertain terms that, in Congress's view, there was no need to study the topic further. Appropriations acts, like any other laws, are binding, because they are "passe[d] [by] both Houses and . . . signed by the President." United States v. Munoz-Flores, 495 U.S. 385, 396 (1990); id. at 401 (STEVENS, J., concurring in judgment). See also United States v. Will, 449 U.S. 200, 222 (1980); United States v. Dickerson, 310 U.S. 554, 555 (1940).
30. See Departments of Commerce, Justice, and State, the Judiciary and Related Agencies Appropriations Act, 1989, Pub.L. 100 459, 102 Stat. 2216; Departments of Commerce, Justice, and State, the Judiciary and Related Agencies Appropriations Act, 1990, Pub.L. 101-162, 103 Stat. 1020.
31. For example, the Congressional Research Service (CRS) analyzed data from some 8,720 FCC-licensed radio and TV stations and found a strong correlation between minority ownership and diversity of programming. See CRS, Minority Broadcast Station Ownership and Broadcast Programming: Is There a Nexus? (June 29, 1988). While only 20 percent of stations with no Afro-American ownership responded that they attempted to direct programming at Afro-American audiences, 65 percent of stations with Afro-American ownership reported that they did so. See id. at 13. Only 10 percent of stations without Hispanic ownership stated that they targeted programming at Hispanic audiences, while 59 percent of stations with Hispanic owners said they did. See id. at 13, 15. The CRS concluded:
[A]n argument can be made that FCC policies that enhanced minority . . . station ownership may have resulted in more minority and other audience targeted programming. To the degree that increasing minority programming across audience markets is considered adding to programming diversity, then, based on the FCC survey data, an argument can be made that the FCC preference policies contributed, in turn, to programming diversity.
Id. at cover page.
Other surveys support the FCC's determination that there is a nexus between ownership and programming. A University of Wisconsin study found that Afro-American-owned, Afro-American-oriented radio stations have more diverse playlists than white-owned, Afro-American oriented stations. See J. Jeter, A Comparative Analysis of the Programming Practices of Black-Owned Black-Oriented Radio Stations and White-Owned Black-Oriented Radio Stations 130, 139 (1981) (University of Wisconsin-Madison). See also M. Spitzer, Justifying Minority Preferences in Broadcasting, California Institute of Technology Working Paper No. 718, pp. 19-29 (March 1990) (explaining why minority status of owner might affect programming behavior).
32. Fife, "The Impact of Minority Ownership on Minority Images in Local TV News," in Communications: A Key to Economic and Political Change, Selected Proceedings from the 15th Annual Howard University Communications Conference 113 (1986) (survey of four Standard Metropolitan Statistical Areas); see also M. Fife, The Impact of Minority Ownership on Broadcast News Content: A Multi-Market Study 52 (June 1986) (report submitted to National Association of Broadcasters).
33. For example, a University of Massachusetts at Boston survey of 3,000 local Boston news stories found a statistically significant difference in the treatment of events, depending on the race of ownership. See K. Johnson, Media Images of Boston's Black Community 16-29 (Jan. 28, 1987) (William Monroe Trotter Institute, University of Massachusetts at Boston). A comparison between an Afro-American-owned television station and a white-owned station in Detroit concluded that
the overall mix of topic and location coverage between the two stations is statistically different, and with its higher use of blacks in newsmaker roles and its higher coverage of issues of racial significance, [the Afro-American-owned station's] content does represent a different perspective on news than [that of the white-owned station].
M. Fife, The Impact of Minority Ownership On Broadcast Program Content: A Case Study of WGPR-TV's Local News Content, Report to the National Association of Broadcasters, Office of Research and Planning 45 (Sept. 1979). See also R. Wolseley, The Black Press, U.S.A. 3-4, 11 (2d ed.1990) (documenting importance of minority ownership).
34. Afro-American-owned radio stations, for example, have hired Afro-Americans in top management and other important job categories at far higher rates than have white-owned stations, even those with Afro-American-oriented formats. The same has been true of Hispanic hiring at Hispanic-owned stations, compared to Anglo-owned stations with Spanish language formats. See Honig, Relationships Among EEO, Program Service, and Minority Ownership in Broadcast Regulation, in Proceedings from the Tenth Annual Telecommunications Policy Research Conference 88-89 (0. Gandy, P. Espinoza, & J. Ordover eds. 1983). As of September, 1986, half of the 14 Afro-American or Hispanic general managers at TV stations in the United States worked at minority-owned or controlled stations. See National Association of Broadcasters, Minority Broadcasting Facts 9-10, 55-57 (Sept.1986). In 1981, 13 of the 15 Spanish-language radio stations in the United States owned by Hispanics also had a majority of Hispanics in management positions, while only a third of Anglo-owned Spanish-language stations had a majority of Hispanic managers, and 42 percent of the Anglo-owned Spanish-language stations had no Hispanic managers at all. See Schement & Singleton, The Onus of Minority Ownership: FCC Policy and Spanish-Language Radio, 31 J.Communication 78, 80-81 (1981). See generally Johnson, supra, at 5 ("Many observers agree that the single largest reason for the networks' poor coverage of racial news is related to the racial makeup of the networks' own staffs"); Wimmer, supra, n. 2, at 426-427 ("[M]inority-owned broadcast outlets tend to hire more minority employees. . . . A policy of minority ownership could, over time, lead to a growth in minority employment, which has been shown to produce minority-responsive programming") (footnotes omitted).
35. See also Peters v. Kiff, 407 U.S. 493, 503-504 (1972) (opinion of MARSHALL, J.) ("[W]e are unwilling to make the assumption that the exclusion of Negroes has relevance only for issues involving race. When any large and identifiable segment of the community is excluded from jury service, the effect is to remove from the jury room qualities of human nature and varieties of human experience, the range of which is unknown and perhaps unknowable. It is not necessary to assume that the excluded group will consistently vote as a class in order to conclude, as we do, that its exclusion deprives the jury of a perspective on human events that may have unsuspected importance in any case that may be presented").
36. The Commission has eschewed direct federal control over discrete programming decisions by radio and television stations. See, e.g., Network Programming Inquiry, Report and Statement of Policy, 25 Fed.Reg. 7293 (1960) ("[W]hile the Commission may inquire of licensees what they have done to determine the needs of the community they propose to serve, the Commission may not impose upon them its private notions of what the public ought to hear"). In order to ensure diversity by means of administrative decree, the Commission would have been required to familiarize itself with the needs of every community and to monitor the broadcast content of every station. Such a scheme likely would have presented insurmountable practical difficulties, in light of the thousands of broadcast outlets in the United States and the myriad local variations in audience tastes and interests. Even were such an ambitious policy of central planning feasible, it would have raised "serious First Amendment issues" if it denied a broadcaster the ability to "carry a particular program or to publish his own views," if it risked "government censorship of a particular program," or if it led to "the official government view dominating public broadcasting." Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 396 (1969); cf. FCC v. Sanders Brothers Radio Station, 309 U.S. 470, 475 (1940). The Commission, with the approval of this Court, has therefore "avoid[ed] unnecessary restrictions on licensee discretion," and has interpreted the Communications Act as "seek[ing] to preserve journalistic discretion while promoting the interests of the listening public." FCC v. WNCN Listeners Guild, 450 U.S. 582, 596 (1981).
37. One factor was the extent to which a station carried programs unsponsored by commercial advertisers during hours "when the public is awake and listening." Blue Book 55-56. The Commission believed that this would expand diversity by permitting the broadcast of less popular programs that would appeal to particular tastes and interests in the listening audience that might otherwise go unserved. See id. at 12. Second, the Commission called for local live programs to encourage local self-expression. See id. at 56. Third, the Commission expected "progam[ming] devoted to the discussion of public issues." Ibid. The final factor was the amount of advertising aired by the licensee. Ibid.
38. The Commission also devised policies to guard against discrimination in programming. For example, it determined that "arbitrar[y] refus[al] to present members of an ethnic group, or their views" in programming, or refusal to present members of such groups "in integrated situations with members of other groups," would constitute a ground for license nonrenewal. Citizens Communications Center, 25 F.C.C.2d 705, 707 (1970).
39. In addition, the Commission developed nonentertainment guidelines, which called for broadcasters to devote a certain percentage of their programming to non-entertainment subjects such as news, public affairs, public service announcements, and other topics. See WNCN Listeners Guild, supra, 450 U.S. at 598-599, n. 41; Revision of Programming and Commercialization Policies, Ascertainment Requirements, and Program Log Requirements for Commercial Television Stations, 98 F.C.C.2d 1076, 1078 (1984) (hereinafter Deregulation of Television); Deregulation of Radio, 84 F.C.C.2d 968, 975 (1981). Applicants proposing less than the guideline amounts of nonentertainment programming could not have their applications routinely processed by the Commission staff; rather, such applications were brought to the attention of the Commission itself.
40. The Commission recently eliminated its ascertainment policies for commercial radio and television stations, together with its nonentertainment programming guidelines. See Deregulation of Radio, supra, at 975-999, reconsideration denied, 87 F.C.C.2d 797 (1981), rev'd on other grounds sub nom. Office of Communication of the United Church of Christ v. FCC, 228 U.S.App.D.C. 8, 707 F.2d 1413 (1983); Deregulation of Television, supra, at 1096-1101, reconsideration denied, 104 F.C.C.2d 358 (1986), remanded on other grounds sub nom. Action for Children's Television v. FCC, 261 U.S.App.D.C. 253, 821 F.2d 741 (1987). The Commission found that the ascertainment rules imposed significant burdens on licensees without producing corresponding benefits in terms of responsiveness to community issues. See 98 F.C.C.2d at 1098 ("Ascertainment procedures . . . were intended as a means of ensuring that licensees actively discovered the problems, needs and issues facing their communities. . . . Yet we have no evidence that these procedures have had such an effect") (footnote omitted).
41. Although the Commission has concluded that "the growth of traditional broadcast facilities" and "the development of new electronic information technologies" have rendered "the fairness doctrine unnecessary," Report Concerning the General Fairness Doctrine Obligations of Broadcast Licensees, 102 F.C.C.2d 143, 197 (1985), the Commission has not made such a finding with respect to its minority ownership policies. To the contrary, the Commission has expressly noted that its decision to abrogate the fairness doctrine does not in its view call into question its "regulations designed to promote diversity." Syracuse Peace Council (Reconsideration), 3 F.C.C.Rcd 2035, 2041, n. 56 (1988).
42. Justice O'CONNOR offers few race-neutral alternatives to the policies that the FCC has already employed and found wanting. She insists that "[t]he FCC could directly advance its interest by requiring licensees to provide programming that the FCC believes would add to diversity." Post at 622. But the Commission's efforts to use the ascertainment program to determine the programming needs of each community and the comparative licensing procedure to provide licensees incentives to address their programming to these needs met with failure. A system of FCC-mandated "diverse" programming would have suffered the same fate, while introducing new problems as well. See n. 36, supra.
Justice O'CONNOR's proposal that
[t]he FCC . . . evaluate applicants upon their ability to provide and commitment to offer whatever programming the FCC believes would reflect underrepresented viewpoints,
post at 623, similarly ignores the practical difficulties in determining the "underrepresented viewpoints" of each community. In addition, Justice O'CONNOR's proposal is in tension with her own view of equal protection. On the one hand, she criticizes the Commission for failing to develop specific definitions of "minority viewpoints" so that it might implement her suggestion. Ibid; see also post at 629 (noting that the FCC has declined to identify "any particular deficiency in the viewpoints contained in the broadcast spectrum") (emphasis added). On the other hand, she implies that any such effort would violate equal protection principles, which she interprets as prohibiting the FCC from "identifying what constitutes a ‘Black viewpoint,' an ‘Asian viewpoint,' an ‘Arab viewpoint,' and so on [and] determining which viewpoints are underrepresented." Post at 615. In this light, Justice O'CONNOR should perceive as a virtue rather than a vice the FCC's decision to enhance broadcast diversity by means of the minority ownership policies rather than by defining a specific "Black" or "Asian" viewpoint.
Justice O'CONNOR maintains that the FCC should have experimented with "[r]ace-neutral financial and informational measures," post at 623, in order to promote minority ownership. This suggestion is so vague that it is difficult to evaluate. In any case, both Congress, see supra at 574 (describing minority financing fund that would have accompanied lottery system), and the Commission considered steps to address directly financial and informational barriers to minority ownership. After the Minority Ownership Task Force identified the requirement that licensees demonstrate the availability of sufficient funds to construct and operate a station for one year, see Ultravision Broadcasting, 1 F.C.C.2d 544, 547 (1965), as an obstacle to minority ownership, see Task Force Report, at 11-12, that requirement was subsequently reduced to three months. See Financial Qualifications Standards, 72 F.C.C.2d 784, 784 (1979) (television applicants); Financial Qualifications for Aural Applicants, 69 F.C.C.2d 407, 407-408 (1978) (radio applicants). In addition, the Commission noted that minority broadcasters are eligible for assistance from the Small Business Administration and other federal agencies. See Task Force Report, at 17-22. The Commission also disseminated information about potential minority buyers of broadcast properties. See, e.g., FCC EEO-Minority Enterprise Division, Minority Ownership of Broadcast Facilities: A Report 8-9 (Dec.1979). Despite these race-neutral initiatives, the Commission concluded in 1982 that the "‘dearth of minority ownership' in the telecommunications industry" remained a matter of "serious concern." Commission Policy Regarding Advancement of Minority Ownership in Broadcasting, 92 F.C.C.2d 849, 852 (1982).
The Commission has continued to employ race-neutral means of promoting broadcast diversity. For example, it has worked to expand the number of broadcast outlets within workable technological limits, see, e.g., Implementation of BC Docket No. 80-90 To Increase Availability of FM Broadcast Assignments, 100 F.C.C.2d 1332 (1985), to develop strict cross-ownership rules, see n. 16, supra, and to encourage issue-oriented programming by recognizing a licensee's obligation to present programming responsive to issues facing the community of license. See, e.g., Deregulation of Television, 104 F.C.C.2d at 359; Deregulation of Radio, 84 F.C.C.2d at 982-983. The Commission has nonetheless concluded that these efforts cannot substitute for its minority ownership policies. See, e.g., id. at 977.
43. Congress followed closely the Commission's efforts to increase programming diversity, see supra at 572-579, including the development of the ascertainment policy. See, e.g., S.Rep. No. 93-1190, pp. 6-7 (1974); Broadcast License Renewal Act: Hearings on S. 16 et al. before the Subcommittee on Communications of the Senate Committee on Commerce, 93d Cong., 2d Sess., pt. 1, p. 63 (1974) (testimony of Sen. Scott); id. at 65 (testimony of Rep. Brown). Congress heard testimony from the chief of the Commission's Mass Media Bureau that the ascertainment rules were "seriously flawed" because they "became highly ritualistic and created unproductive unseemly squabbling over administrative trivia." Broadcast Regulation and Station Ownership: Hearings on H.R. 6122 and H.R. 6134 before the Subcommittee on Telecommunications, Consumer Protection, and Finance of the House Committee on Energy and Commerce, 98th Cong., 2d Sess., 165 (1984). Other witnesses testified that the minority ownership policies were adopted
only after specific findings by the Commission that ascertainment policies, and equal opportunity rules fell far short of increasing minority participation in programming and ownership.
Minority Ownership of Broadcast Stations: Hearing before the Subcommittee on Communications of the Senate Committee on Commerce, Science, and Transportation, 101st Cong., 1st Sess., p. 157 (1989) (testimony of J. Clay Smith, Jr., National Bar Association). In enacting the lottery statute, Congress explained the "current comparative hearing process" had failed to produce adequate programming diversity and that
[t]he policy of encouraging diversity of information sources is best served . . . by assuring that minority and ethnic groups that have been unable to acquire any significant degree of media ownership are provided an increased opportunity to do so.
H.R.Conf.Rep. No. 97-765, p. 43 (1982), U.S. Code Cong. & Admin.News 1982, 2287. Only in this way would "the American public [gain] access to a wider diversity of information sources." Id. at 45, U.S.Code Cong. & Admin.News 1982, 2289.
44. The proposal was withdrawn after vociferous opposition from broadcasters, who maintained that a notice requirement "would create a burden on stations by causing a significant delay in the time it presently takes to sell a station," and that it might require the disclosure of confidential financial information. 43 Fed.Reg. 24561 (1978).
45. See Public Papers of the Presidents, supra, n. 4; Petition for Issuance of Policy Statement or Notice of Inquiry by National Telecommunications and Information Administration, 69 F.C.C.2d 1591, 1593 (1978). The petition advanced such proposals as a blanket exemption for minorities from certain then-existing Commission policies, such as a rule restricting assignments of stations by owners who had held their stations for less than three years, see 47 CFR § 1.597 (1978); multiple ownership regulations that precluded an owner from holding more than one broadcast facility in a given service that overlapped with another's signal, see id. §§ 73.35, 73.240, and 73.636; and the "Top 50" policy, which required a showing of compelling public interest before the same owner was allowed to acquire a third VHF or fourth (either VHF or UHF) television station in the 50 largest television markets. The Commission rejected these proposals on the ground that, while minorities might qualify for waivers on a case-by-case basis, a blanket exception for minorities "would be inappropriate." 69 F.C.C.2d at 1597.
46. As of mid-1973, licenses for 66.6 percent of the commercial television stations -- and 91.4 percent of the VHF stations -- that existed in mid-1989 had already been awarded. 68.5 percent of the AM and FM radio station licenses authorized by the FCC as of mid-1989 had already been issued by mid-1973, including 85 percent of the AM stations. See Brief for Capital Cities/ABC, Inc., as Amicus Curiae in No. 89-453, p. 11, n. 19. See also n. 2, supra; Honig, The FCC and Its Fluctuating Commitment to Minority Ownership of Broadcast Facilities, 27 How.L.J. 859, 875, n. 87 (1984) (reporting 1980 statistics that Afro-Americans "tended to own the least desirable AM properties" -- those with the lowest power and highest frequencies, and hence those with the smallest areas of coverage).
47. See, e.g., Minority Ownership of Broadcast Stations: Hearing Before the Subcommittee on Communications of the Senate Committee on Commerce, Science, and Transportation, 101st Cong., 1st Sess. (1989). See also supra at 578-579.
48. As in £Fullilove v. Klutznick, 448 U.S. 448 (1980), the FCC minority preferences are subject to "administrative scrutiny to identify and eliminate from participation" those applicants who are not bona fide. Id. at 487-488. See Formulation of Policies and Rules Relating to Broadcast Renewal Applicants, Competing Applicants and Other Participants to Comparative Renewal Process and to Prevention of Abuses of the Renewal Process, 3 F.C.C.Rcd 5179 (1988). The FCC's Review Board, in supervising the comparative hearing process, seeks to detect sham integration credits claimed by all applicants, including minorities. See, e.g., Silver Springs Communications, 5 F.C.C.Rcd 469, 479 (1990); Metroplex Communications, Inc., 4 F.C.C.Rcd 8149, 8149-8150, 8159-8160 ( 1989); Northampton Media Associates, 3 F.C.C.Rcd 5164, 5170-5171 (Rev.Bd.1988); Washoe Shoshone Broadcasting, 3 F.C.C.Rcd 3948, 3955 (Rev.Bd.1988); Mulkey, 3 F.C.C.Rcd 590, 590-593 (Rev.Bd. 1988), modified, 4 F.C.C.Rcd 5520, 5520-5521 (1989); Newton Television, Limited, 3 F.C.C.Rcd 553, 558-559, n. 2 (Rev.Bd.1988); Magdelene Gunden Partnership, 3 F.C.C.Rcd 488, 488-489 (Rev.Bd.1988); Tulsa Broadcasting Group, 2 F.C.C.Rcd 6124, 6129-6130 (Rev.Bd.1987); Pacific Television, Ltd., 2 F.C.C.Rcd 1101, 1102-1104 (Rev.Bd.1987), review denied, 3 F.C.C.Rcd 1700 (1988); Payne Communications, Inc., 1 F.C.C.Rcd 1052, 1054-1057 (Rev.Bd.1986); N.E.O. Broadcasting Co., 103 F.C.C.2d 1031, 1033 (Rev. Bd.1986); Hispanic Owners, Inc., 99 F.C.C.2d 1180, 1190-1191 (Rev.Bd.1985); KIST Corp., 99 F.C.C.2d 173, 186-190 (Rev.Bd.1984), aff'd as modified, 102 F.C.C.2d 288, 292-293, and n. 11 (1985), aff'd sub nom. United American Telecasters, Inc. v. FCC, 255 U.S.App.D.C. 397, 801 F.2d 1 436 (1986).
As evidenced by respondent Shurberg's own unsuccessful attack on the credentials of Astroline, see 278 U.S.App.D.C. at 31, 876 F.2d at 906, the FCC also entertains challenges to the bona fide nature of distress sale participants. See 1982 Policy Statement, 92 F.C.C.2d at 855.
49. Minority broadcasters, both those who obtain their licenses by means of the minority ownership policies and those who do not, are not stigmatized as inferior by the Commission's programs. Audiences do not know a broadcaster's race, and have no reason to speculate about how he or she obtained a license; each broadcaster is judged on the merits of his or her programming. Furthermore, minority licensees must satisfy otherwise applicable FCC qualifications requirements. Cf. Fullilove, 448 U.S. at 521 (MARSHALL, J., concurring in judgment).
50. Petitioner Metro contends that, in practice, the minority enhancement credit is not part of a multifactor comparison of applicants, but rather amounts to a per se preference for a minority applicant in a comparative licensing proceeding. But experience has shown that minority ownership does not guarantee that an applicant will prevail. See, e.g., Radio Jonesboro, Inc., 100 F.C.C.2d 941, 945-946 (1985); Lamprecht, 99 F C.C.2d 1219, 1223 (Rev.Bd.1985), review denied, 3 F.C.C.Rcd 2527 (1988), appeal pending, Lamprecht v. FCC, No. 88-1395 (CADC); Horne Industries, Inc., 98 F.C.C.2d 601, 603 (1984); Vacationland Broadcasting Co., 97 F.C.C.2d 485, 514-517 (Rev.Bd.1984), modified, 58 Radio Reg.2d (P & F) 439 (1985); Las Misiones de Bejar Television Co., 93 F.C.C.2d 191, 195 (Rcv. Bd.1983), review denied, FCC 84-97 (May 16, 1984); Waters Broadcasting Corp., 88 F.C.C.2d 1204, 1211-1212 (Rev.Bd.1981).
In many cases cited by Metro, even when the minority applicant prevailed, the enhancement for minority status was not the dispositive factor in the Commission's decision to award the license. See, e.g., Silver Springs Communications, Inc., 5 F.C.C.Rcd 469, 479 (ALJ 1990); Richardson Broadcasting Group, 4 F.C.C.Rcd 7989, 7999 (ALJ 1989); Pueblo Radio Broadcasting Service, 4 F.C.C.Rcd 7802, 7812 (ALJ 1989); Poughkeepsie Broadcasting Limited Partnership, 4 F.C.C.Rcd 6543, 6551, and n. 4 (ALJ 1989); Barden, 4 F.C.C.Rcd 7043, 7045 (ALJ 1989); Perry Television, Inc., 4 F.C.C.Rcd 4603, 4618, 4620 (ALJ 1989); Corydon Broadcasting, Ltd., 4 F.C.C.Rcd 1537, 1539 (ALJ 1989), remanded, Order of Dec. 6, 1989 (Rev.Bd.); Breaux Bridge Broadcasters Limited Partnership, 4 F.C.C.Rcd 581, 585 (ALJ 1989); Key Broadcasting Corp., 3 F.C.C.Rcd 6587, 6600 (ALJ 1988); 62 Broadcasting, Inc., 3 F.C.C.Rcd 4429, 4450 (ALJ 1988), aff'd, 4 F.C.C.Rcd 1768, 1774 (Rev.Bd.1989), review denied, FCC 90-48 (Feb. 13, 1990); Gali Communications, Inc., 2 F.C.C.Rcd 6967, 6994 (ALJ 1987); Bogner Newton Corp., 2 F.C.C.Rcd 4792, 4805 (ALJ 1987); Garcia, 2 F.C.C.Rcd 4166, 4168, n. 1 (ALJ 1987), aff'd, 3 F.C.C.Rcd 1065 (Rev.Bd.), review denied, 3 F.C.C.Rcd 4767 (1988); Magdalene Gunden Partnership, 2 F.C.C.Rcd 1223, 1238 (ALJ 1987), aff'd, 2 F.C.C.Rcd 5513 (Rev. Bd.1987), reconsideration denied, 3 F.C.C.Rcd 488 (Rev.Bd.), review denied, 3 F.C.C.Rcd 7186 (1988); Tulsa Broadcasting Group, 2 F.C.C.Rcd 1149, 1162 (ALJ), aff'd, 2 F.C.C.Rcd 6124 (Rev. 'Bd.1987), review denied, 3 F.C.C.Rcd 4541 (1988); Tomko, 2 F.C.C.Rcd 206, 209, n. 3 (ALJ 1987).
51. Faith Center also held broadcast licenses for three California stations, and in 1978, the FCC designated for a hearing Faith Center's renewal application for its San Bernardino station because of allegations of fraud in connection with over-the-air solicitation for funds and for failure to cooperate with an FCC investigation. Although respondent Shurberg did not file a competing application prior to the Commission's decision to designate for hearing Faith Center's renewal application for its Hartford station, timely-filed competing applications against two of Faith Center's California stations prevented their transfer under the distress sale policy. See Faith Center, Inc., 89 F.C.C.2d 1054 (1982), and Faith Center, Inc., 90 F.C.C.2d 519 (1982). Of course, a competitor may be unable to foresee that the FCC might designate a license for a revocation or renewal hearing, and so might neglect to file a competing application in timely fashion. But it is precisely in such circumstances that the minority distress sale policy would least disrupt any of the competitor's settled expectations. From the competitor's perspective, it has been denied an opportunity only at a windfall; it expected the current licensee to continue broadcasting indefinitely, and did not anticipate that the license would become available.
52. Even for troubled licensees, distress sales are relatively rare phenomena; most stations presented with the possibility of license revocation opt not to utilize the distress sale policy. Many seek and are granted special relief from the FCC enabling them to transfer the license to another concern as part of a negotiated settlement with the Commission, see Coalition for the Preservation of Hispanic Broadcasting v. FCC, 282 U.S.App.D.C. 200, 203-204, 893 F.2d 1349, 1352-1353 (1990); bankrupt licensees can effect a sale for the benefit of innocent creditors under the "Second Thursday" doctrine, see Second Thursday Corp., 22 F.C.C.2d 515, 520-521 (1970), reconsideration granted, 25 F.C.C.2d 112, 113-115 ( 1970); Northwestern Indiana Broadcasting Corp. (WLTH), 65 F.C.C.2d 66, 7071 (1977); and still others elect to defend their practices at hearing.