Metro Broadcasting, Inc. v. Federal Communications Commission Brief Amicus Curiae in Support of Respondents

    No. 89-453

In The
S u p r e m e  C o u r t  o f  ttjc i f p i t e t r  S ta le s t

October Term, 1989

Metro Broadcasting, Inc.,
Petitioner,

v.

F ederal Communications Commission, et a l
Respondents.

On Writ Of Certiorari 
To The United States Court Of Appeals 

For The District Of Columbia Circuit

BRIEF AMICUS CURIAE FOR THE NAACP 
LEGAL DEFENSE & EDUCATIONAL FUND, INC. 

IN SUPPORT OF RESPONDENTS

J ulius L. Chambers 
Charles Stephen Ralston 
Ronald L. E llis 
E ric Schnapper 
Clyde E. Murphy*
99 Hudson Street 
Suite 1600
New York, New York 10013 
(212) 219-1900

Nolan A. Bowie, J.D.
Temple University 
220 Tomlinson Theatre 
Philadelphia, PA 19122

Counsel fo r  Amicus 

* Counsel o f Record

PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. (202) 347-8203



QUESTION PRESENTED

Whether the Federal Communications 

Commission's Congressionally mandated 

policy of considering minority status as 

one of several enhancing factors in 

comparative licensing proceedings is 

consistent with the equal protection 

component of the Fifth Amendment?

i



TABLE OF CONTENTS

QUESTION PRESENTED . . . . . . . . . .  i

INTEREST OF AMICUS . . . . . . . . . .  1

SUMMARY OF ARGUMENT . . . . . . . . . .  2

ARGUMENT . . . . . . . . . . . . . . .  5

I. HISTORICALLY CONGRESS HAS IMPOSED
ITS WILL ON THE FCC THROUGH A 
VARIETY OF FORMAL AND INFORMAL 
MEANS . . . . . . . . . . . .  5

II. CONGRESS HAD SUFFICIENT EVIDENCE
BEFORE IT TO CONCLUDE THAT 
ENHANCEMENT OF MINORITY OWNERSHIP 
COULD BE EXPECTED TO CONTRIBUTE 
TO THE DIVERSITY OF PERSPECTIVE 
AVAILABLE . . . . . . . . .  30

III. AFRICAN AMERICAN MEDIA DEMONSTRABLY
PRESENTS A DIFFERENT PERSPECTIVE AND 
EMPHASIS THAN THAT PRESENTED BY THE 
MAJORITY MEDIA . . . . . . . . .  42

IV. CONGRESS HAS BROAD DISCRETION TO
DETERMINE THE HARM DONE BY RACIAL 
DISCRIMINATION AND TO FORMULATE A 
REMEDY FOR THAT DISCRIMINATION 53

CONCLUSION . . . . . . . . .  4

Page

ii



TABLE OF AUTHORITIES

Associated Press v. United States,
326 U.S. 1 (1945) ......... 36, 33

Cases: Page

Citizens Communications 
Center v. F.C.C.,

447 F .2d 1201 (D.C.Cir. 1971) . . .  38, 42

City of Richmond v. J.A. Croson Co.,
109 S. Ct. 706 (1989) . . 53, 54,

55, 56 59

Syracuse Peace Council,
2 F.C.C. 2nd 5043 (1987), 

aff'd 867 F.2d 654 (D.C. Cir. 1989) 36

F.C.C. v. National Citizens 
Comm, for Broadcasting,
436 U.S. 775 (1978) . . . . .  33, 37

F.C.C. v. R.C.A. Communications, Inc., 
346 U.S. 86 (1953) ......... 37

Fullilove v. Klutznick,
448 U.S. 448 (1980) . . .  30, 54,

56, 57

NAACP V. FPC,
425 U.S. 662 (1976) . . . . .  59

NBC v. United States,
319 U.S. 190 (1943)......... 31

Radio Station WOW v. Johnson,
326 U.S. 120 (1945) . . . . .  36

Red Lion Broadcasting Co. v. F.C.C.,
395 U.S. 367 (1969)......... 7, 37

iii



Cases Page
TV 9 Inc. v. F.C.C.,

495 F.2d 929 (D.C. Cir. 1973) 38

Wygant v. Jackson
Board of Education,

476 U.S. 267 (1986) . . .  58, 59

Constitution, Statutes and Regulations
18 U.S.C. 1464 . . . . . . . . . .  19

47 U.S.C. 154(c) ............ .. 6

47 U.S.C. § 303 ........... 31

47 U.S.C. § 307 (b) . .............. 36

47 U.S.C. § 402 ................  41

Continuing Appropriations for
Fiscal Year 1987, Pub. L. No. 99-591, 

Section 101(b), 100 Stat.3341 (1986) 15

Departments of Commerce, Justice, and 
State, the Judiciary, and Related 
Agencies Appropriations Act, 1988,
Pub. L. No. 100-202, 101 Stat.
1329-31 to 1329-32 ........... 16

Departments of Commerce, Justice, and 
State, the Judiciary, and Related 
Agencies Appropriations Act, 1989,
Pub. L.No. 100-459, 102 Stat.
2216-2217 (1988).............  16, 19

iv



Constitution, Statutes and Regulations
Departments of Commerce, Justice, and 

State, the Judiciary, and Related 
Agencies Appropriations Act, 1990,
Pub. L. No. 101-162, 103 Stat.
1020-1021 (1989).................   16

Federal Communications Commission
Authorization Act of 1983,

Pub. L. No. 98-214, 97 Stat.
1467 (codified at 47 U.S.C. 156) . 18

Legislative Reorganization Act of 1946,
Section 136, 2 U.S.C. 190d (1970) . . 24

Radio Act of 1927, Pub. L. No. 632,
44 Stat. 1162 (1927)   7

Vessel Bridge-to-Bridge Radiotelephone Act, 
33 U.S.C.A. § 1201-08 (1971) . . 28

Pub. L. No. 92-12, 85 Stat. 29 (1971) . 28

Pub. L. No. 98-396, Section 304,
98 Stat. 1369, 1423 (1984) . . . . .  23

Rules of the House of Representatives,
H.R. Doc. No. 279, 99th Cong.,
2d Sess. 573 (1987)    14

Standing Rules of the Senate,
Sen. Doc No. 4, 100th Cong.,
1st Sess. (1987)   14

47 C.F.R. 73 (1989).................... 19

47 C.F.R. § 73.3555 (1987) . . .  32, 33

47 C.F.R. §76.501 (1987)   33

v



53 Fed. Reg. 52425 (Dec. 28, 1988) . 19

Report and Order, 49 Fed. Reg. 31,877 
(1984) .................... .. 22

32 F.C.C. 689 (1962) . . . . . .  27

100 F.C.C. 17 (1984) . . . . . .  32

Rules and Regulations Relating to 
Multiple Ownership of Standard,
FM and Television Broadcast
Stations, 18 F.C.C. 288 (1953) . . 31

New Financial Qualifications for Aural 
Applicants, F.C.C. 78-556 
(Aug. 2, 1978) . . . . . . . . .  61

New Financial Qualifications Standard 
for Broadcast Television Applicants, 
F.C.C. 79-299 (May 11, 1979) . . 61

Miscellaneous:
Amendment of Section 73.3555,

Memorandum Opinion and Order,
100 F.C.C. 2d 74,
para. 3 (1985) ..............  18, 23

Availability of FM Broadcast Assignments,
101 F.C.C. 2d 638 (1985), reconsid. 
granted in part and denied in part,
59 Radio Reg. 2d (P&F) 1221 (1986),

aff'd, National Black Media Coalition v .

Constitution, Statutes and Regulations

F.C.C. 2d 277 1345 (1980) . . .  61

Brief For Federal Communications 
Commission, Astroline v. Shurberg,

No. 89-700 .............. 17, 60

vi



Miscellaneous Page
Brief For The United States As Amicus 

Curiae Supporting Petitioner,
Metro Broadcasting, Inc. v. Federal 
Communications Commission, et al.,
No. 89-453 ...........  5, 29, 54

Dann, Martin E., The Black Press: 1827-1890 
(New York: Putman & Sons, 1971) . . 42

FCC Minority Ownership Task Force, 
Minority Ownership in Broadcasting
(1978) .................. 61

Fenno, R. The Power of the Purse,
(1966) .......................  15

Fife, Marilyn Diane, "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 Broadcasting, Office of 
Research and Planing (1979) . . 46

Fife, Marilyn Diane, "The Impact of
Minority Ownership on Minority Images 
in Local TV News" (1986) . . 46, 48

Jeter, James Phillips, "A Comparative
Analysis of the Programming Practices 

of Black-Owned Black-Oriented Radio 
Stations and White-Owned Black-Oriented 
Stations", Ph.D Dissertion, University 
of Wisconsin, (1981) . . . .  42, 43

45, 52

vii



Miscellaneous Page
Krasnow and Shooshan, "Congressional 

Oversight: The Ninety-Secon Congress 
and the Federal Communications 
Commission". 10 Harvard Journal On 
Legislation. 297, 301 (1973) . 8, 9

12, 13, 25

Minow, Book Review,
68 Colum. L. Rev. 383 (1968) . 6

1965 Policy Statement on Comparative 
Broadcast Hearings,

1 F.C.C. 2d 393 . . . . .  33, 34
35, 36, 39

1978 Minority Policy Statement
68 F.C.C. 2d 981 . . . . .  38, 62

New Continental Broadcasting Co., 88 F.C.C.
2d 830 (Rev. Bd. 1981) . . . . . .  35

Nondiscrimination in Broadcast Employment, 
18 F.C.C. 2d 240 (1969) . . . .  40

Petition for Rulemaking to Reguire 
Broadcast Licensees to Show 
Nondiscrimination in Employment

Practices 23 F.C.C. 2d 430 (1970) 41

Petition for Rulemaking to Reguire 
Broadcast Licensees to Show 
Nondiscrimination in Their Employment 
Practices, 13 F.C.C. 2d 766 (1968) 39

Random Selection/Lottery Systems
88 F.C.C. 2d 476 (1981) . . . .  62

viii



Miscellaneous Page
Regulation of Broadcasting, Half a Century 

of Government Regulation of Broadcasting 
and the Need for Further Legislative 
Action, 85th Cong. 2d Sess. on 
H. Res. 99 (1958) . . . . . .  26

Report Concerning General Fairness
Doctrine Obligations of Broadcast 

Licensees, 102 F.C.C. 2d 143 (1985) 35

Schement and Singleton, "The Onus of 
Minority Ownership: FCC Policy and 
Spanish-Language Radio, Journal of 
Communication 31 (Spring 1981) . 44

Shooshan and Kransnow, "Congress and the 
Federal Communications Commission: The
Continuing Contest for Power", 9 Comm/Ent 
619 (1986-87) . . . . .  9, 20, 21

Thorp, "Washington Pressures",
2 National J. 1807 (1970) . . 10, 11

Hollie West, "Black Radio: A Question of 
Ownership and Control," The Washington 
Post, January 29, 1973 . . . . . . .  44

Wolseley, Roland E. The Black Press: U.S.A.
(Iowa State University Press, 1971) 43

28 Cong. Q. Almanac 551 (1963) . . 27

House Committee Report H. Rep. 97-765 . 28

H.R. 2250 98th Cong., 1st Sess.,
129 Cong. Rec. H9308-11
(daily ed. Nov. 8, 1983) . . . .  22

ix



Miscellaneous Page
H.R. Cong. Rep. No. 208,

97th Cong. 
899 (1981)

, 1st Sess.
13

H.R. Res. 21 
Cong. Rec. 26

, 78th Cong., 1st Sess., 
(1943) . . . . . .

89
11

H.R. Rep. No. 
2d Sess.

1139, 93rd Cong.,
15 (1974) . . . . . . 20

H.R. Rep. No. 765 . . . . . . 39

H.R. Res. No. 
1st Sess., 
(daily ed.

395, 100th Cong.,
133 Cong. Rec. H12 
Dec. 22, 1987) . . . . 18

S . Rep. 206, 
1st Sess.

98th Cong.,
23 (1983) . . . . 21

S. Rep. No. 1056, 93rd Cong.,
2d Sess. 19 (1974) . . . .  20

S. Rep. No. 182, 100th Cong.,
1st Sess. 76 (1987) . . . .  17, 39

X



No. 89-453
IN THE

SUPREME COURT OF THE UNITED STATES 
OCTOBER TERM, 1989

METRO BROADCASTING, INC., PETITIONER

v.

FEDERAL COMMUNICATIONS COMMISSION, ET AL.

ON WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 
FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF AMICUS CURIAE FOR THE NAACP 
LEGAL DEFENSE & EDUCATIONAL FUND, INC.

INTEREST OF AMICUS

The NAACP Legal Defense and 

Educational Fund, Inc., is a non-profit 

corporation formed to assist blacks to 

secure their constitutional and civil 

rights by means of litigation. For many 

years attorneys of the Legal Defense Fund 

have represented parties in litigation



2
before this Court and the lower courts 

involving a variety of race discrimination 

and remedial issues, including questions 

involving the proper scope and 

interpretation of the Fourteenth and Fifth 

Amendments. The Legal Defense Fund 

believes that its experience in this area 

of litigation and the research it has done 

will assist the Court in this case. The 

parties have consented to the filing of 

this brief and letters of consent have been 

filed with the Clerk.

SUMMARY OF ARGUMENT

The FCC's minority ownership policies 

are a constitutional remedy to societal and 

industry related discrimination that has 

led to an absence of significant minority 

perspective in the broadcast media. The 

historic relationship between Congress and



3
the FCC make it clear, that these policies 

could not have been considered, instituted 

or maintained without the encouragement and 

insistence of Congress.

The Congressionally mandated minority 

ownership policies now under review, do 

nothing more than apply the principle that 

has been the hallmark of FCC regulation for 

six decades: that diversity of ownership 

leads to diversity of perspective. This 

principle embodies the FCC's attempt to 

promote First Amendment values without 

government regulation of or supervision 

over speech. Thus the minority ownership 

policies are consistent with Congressional 

and FCC policy of promoting vigorous public 

debate - not by imposing content 

restrictions on broadcasters - but by 

permitting different voices to be heard.

Over the years, every governmental 

body that has examined the issue, from the



4
Kerner Commission, to the FCC, to Congress, 

to the courts themselves, have found that 

the perspective of minorities has been 

absent from the media, and that the 

solution to this dilemma was to increase 

minority participation and ownership. The 

history and development of African American 

participation in the media, print and 

broadcast, demonstrates that media owned by 

African Americans brings a distinctive 

perspective to the qualitative judgments 

involved in presenting news and 

entertainment.



5

ARGUMENT
I.

HISTORICALLY CONGRESS HAS IMPOSED 
ITS WILL ON THE FCC THROUGH A 
VARIETY OF FORMAL AND INFORMAL 

MEANS

The assertion that "Congress acts only 

by enacting legislation"1 completely 

ignores the reality of the six decades of 

interaction between Congress and FCC That 

is, despite its broad regulatory 

independence, Congress has, since the 

creation of the Commission, actively sought 

to constrain the FCC from exceeding the

Brief For The United States As 
Amicus Curiae Supporting Petitioner, Metro
Broadcasting ._____Inc.____ v_._____Federal
Communications Commission, et al.. No. 89- 
453, p. 15. The Solicitor General 
apparently uses this reference to infer 
that the appropriations riders which 
Congress passed to prevent the reevaluation 
of the minority enhancement programs should 
not be considered as legislation, or as an 
expression of Congressional intent.



6
bounds of its statutory mandate.2 First, 

the statutory limit on the tenure of 

commissioners, and the requirement that the 

Senate confirm all appointments to the 

Commission are built in sources of 

Congressional control.3 In addition, 

Congress has repeatedly used such 

techniques as Congressional investigations, 

control over FCC appropriations, moratoria, 

and standing committee oversight, as well 

as substantive legislation, and the threat

Newton Minow, former Chairman of 
the F.C.C., recounts the following 
encounter with Speaker of the House Sam 
Rayburn shortly after being appointed 
Chairman. According to Mr. Minow, Speaker 
Rayburn embraced him and said: "Just 
remember one thing son. Your agency is an 
arm of the Congress. You belong to us. 
Remember that, and you’ll be all right." 
The Speaker went on to warn Minow to expect 
pressure, but Minow recalls, "what he did 
not tell me was that most of the pressure 
would come from the Congress itself". 
Minow, Book Review, 68 Colum. L. Rev., 383, 
383-4 (1968) .

3 47 U.S.C. 154(c) (1982)



7
of legislation to assert its authority over 

the Commission.

Communications regulation began in 

this country with the Radio Act of 1927,4 

which contained the general public interest 

standard and delegated broad authority to 

the Radio Commission. Congressional

distrust of this authority burgeoned almost 

immediately, however, and the 

Communications Act of 1934 repealed the 

Radio Act and transferred its grant of 

power to the Federal Communications 

Commission. In the ensuing six decades, 

Congress has enacted "relatively little" 

legislation regulating broadcast

* Pub. L. No. 632, 44 Stat 1162 
(1927). Earlier efforts at regulation have 
been described as completely ineffective. 
See Red Lion Broadcasting Co. v. F.C.C., 
395 U.S. 367, 375-77 (1969).



8
programming.5 Thus statutory control, the 

most obvious congressional activity, "is 

noteworthy for its relative unimportance in 

broadcast regulation".6

Despite the relative dearth of 

substantive legislation restricting or 

extending the FCC's broad mandate of 

authority, Congress has maintained a close 

watch over Commission activity and has had 

a tremendous amount of influence in the 

formulation and direction of FCC rules and 

regulations.

T. Dyk and R. Goldberg, "The 
First Amendment and Congressional 
Investigation of Broadcast Programming", 3 
JLPOL 625, 628 (1987).

K r a s n o w  and S h o o s h a n ,  
"Congressional Oversight: The Ninety-Second 
Congress and the Federal Communications 
Commission", 10 Harvard J. On Legis. 297, 
301 (1973).(Hereafter cited as Krasnow and 
Shooshan.



9
The FCC's status as an independent

agency amplifies its dependence on

Congress. That is, independent agencies:

are not part of any executive 
department, they must function 
without the political protection 
of the President or cabinet 
officer. They also lack any 
effective means of appealing for 
popular support. As a result, 
members of Congress have little 
fear of political reprisal when 
i n t e r a c t i n g  with these 
defenseless agencies.7

In fact, the lack of substantive

legislative guidelines for the FCC makes it

all the more vulnerable to other forms of

congressional influence.8 According to

Paul E. Comstock, a former vice president

and general counsel for the National

Association of Broadcasters, "[mjost of our

Shooshan and Kransnow, "Congress 
and the Federal Communications Commission: 
The Continuing Contest for Power", 9
Comment 619 (1986-7),(Hereafter cited as
Shooshan and Kransnow.

8

305.
Krasnow and Shooshan, supra at



10
work is done with congressional committees. 

We concentrate on Congress. We firmly 

believe that the FCC will do whatever 

Congress tells it to do, and will not do 

anything Congress tells it not to do."9

From its inception, and for the first 

three decades of its existence, the FCC was 

almost always under Congressional 

investigation or the threat of one. 

Indeed, "probably no other federal agency 

has been the object of as much prolonged 

investigation by Congress as the FCC"10 Er 

fifteen years prior to the adoption of 

"network regulations", Congress pressured 

the FCC, and before that the Radio

Thorp, "Washington Pressures", 2 
National J. 1807, 1809 (1970).

10 W. Emery, "Broadcasting And 
Government", 310, 396 (1971). See also, T. 
Dyk and R. Goldberg, The First Amendment 
and Congressional Investigation of 
Broadcast Programming, 3 JLPOL 625, 626-7
(1987) .



11
Commission, on the issue of whether, and 

how, to regulate the growth of radio 

networks. During that period, "in 

virtually every session of Congress, the 

evils of monopoly in the broadcasting 

industry were oratorically deplored, and 

the FCC was frequently chided for not 

riding herd on network practices.11

In 1943, the House passed a resolution 

setting up a select committee to scrutinize 

the organization, personnel and activities 

of the FCC12 And, in 1971, the House held 

hearings to investigate the problem of 

"staged" news and documentaries on 

television.13

11 Id.
12 H.R. Res. 21, 78 th Cong., 1st
, 89 Cong. Rec. 26, 235 (1943).
13 Hearings Before the Special

Investigation Subcommittee of the House
Interstate and Foreign Commerce Committee,
92nd Cong., 1st Sess. (1971).



12
By helping to keep the FCC 
responsive and attuned to the 
wishes and expectations of 
segments of the public, as 
expressed through Congress, they 
illustrated just how effective 
properly conducted investigations 
could be in achieving some of the 
goals of C o n g r e s s i o n a l  
oversight.14

As the pace of deregulation 

accelerated during the Reagan years, 

Congress began to respond specifically to 

attacks on various FCC rules. In a rider 

to the Budget Reconciliation Act of 1981, 

Congress revoked the FCC1s permanent 

authorization and placed it on a two-year 

authorization, in keeping with its 

treatment of other executive agencies 

during this period.15 This allowed Congress

Krasnow and Shooshan, supra at
313.

House Budget Committee, 95th 
Cong., 1st Sess., Congressional Control of 
the Budget 19, 22-4 (Committee Print 1977). 
At the end of World War II, 95% of the 
federal budget was under permanent 
authorization. In the 1970's, Congress



13
to amend the Communications Act every two 

years. The new authorization also allows 

Congress to influence FCC policy in less 

formal ways.16 The Conference Report 

reasoned that

regular and systematic oversight 
will increase the Commission's 
a c c o u n t a b i l i t y  for the 
implementation of Congressional 
policy. . . . The Commission, in 
turn, will have a better 
appreciation of Congressional 
intent.

H.R. Cong. Rep. No. 208, 97th Cong., 1st 

Sess. 899 (1981).

Though less formal methods of 

Congressional influence can work tremendous 

reversals at the FCC, Congress has used the 

appropriations process both often and

shifted an increasing number of agencies to 
annual or multi-year authorizations. 
Approximately one half of the budget 
remains under permanent authorization.

Krasnow and Shooshan, supra 303.



14
creatively in its ongoing effort to control 

the activities of the Commission.

Each house of Congress has promulgated 

internal rules limiting the use of 

appropriations riders to enact substantive 

legislation17. Nevertheless, Congress has 

frequently used appropriations riders to 

enforce its will on the Commission. This 

has become even more evident since the FCC 

was placed on two-year authorization in 

1981.18

House Rule XXI(2), reprinted in 
Constitution, Jefferson's Manual, and Rules 
of the House of Representatives, H.R. Doc. 
No. 279, 99th Cong., 2d Sess. 573 (1987);
Senate Rule IV(4), reprinted in Standing 
Rules of the Senate, Sen. Doc. No. 4, 100th 
Cong., 1st Sess. 10-12 (1987). These rules 
are not constitutionally compelled, and are 
frequently waived.

1 8  • •Congress has absolute discretion
not only over the amount of money allocated
to the Commission but also over the
purposes for which such funds are to be
used. Subcommittees of both houses'
Appropriations Committees hold annual
hearings to examine the F.C.C.'s budget
requests and to question the commissioners



15
Appropriations riders come in two 

forms: positive and negative. Congress

uses both to control the FCC. Positive 

riders require some action on the part of 

the Commission; such as the 1987 rider 

requiring the FCC to consider alternative 

means of enforcing the Fairness Doctrine
. . .  19and to report its findings to Congress. 

Negative riders, known as limitation 19

and top-level staff. Many opportunities 
exist, both at these hearings and 
elsewhere, for the subcommittees to 
"scrutinize FCC behavior and to communicate 
legislative desires to the officials 
involved . . . Although the reports are not 
law, the Appropriations Committees expect 
that they will be regarded almost as 
seriously as if they were". R. Fenno, The 
Power of the Purse. (1966), see generally 
and at 18.

19 The 1987 continuing resolution 
stated that "funds appropriated to the 
Federal Communications Commission by this 
Act shall be used to consider alternative 
means of administration and enforcement of 
the Fairness Doctrine and to report to the 
Congress by September 30, 1987. Continuing 
Appropriations for Fiscal Year 1987, Pub. 
L. No. 99-591, Section 101(b), 100 Stat. 
3341, 3341-67 (1986).



16
riders, restrict the. Commission's ability 

to spend funds or to rescind or modify an 

existing policy. This is the type of rider 

used in 1988 to prohibit the FCC from 

reexamining its minority and female 

preference policies, which Congress has 

extended through fiscal years 1989 and 

1990.20 Appropriations riders sometimes 

express legislative intent concerning the 

policy or practice at issue. For example, 

in the minority preference limitation rider 

the Senate Appropriations Committee 

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

20 Pub. L. No. 100-202, 101 Stat. 
1329-31 to 1329-32 (1987); Pub. L.No. 100- 
459, 102 Stat. 2216-2217 (1988); Pub. L. 
No. 101-162, 103 Stat. 1020-1021 (1989).



17
improved service to minority . .
. audiences.21

The appropriations riders at issue in 

this case prohibit the FCC from spending 

money to rescind a policy that had been in 

effect for over ten years and had been 

addressed by Congress in the past only 

positively. The only feasible intent 

behind the riders, amply supported by the 

legislative history and the earlier 

legislation that prodded the FCC to develop 

minority preferences in the first place, is 

that Congress supported the preferences as 

they had been crafted by the FCC.22

In 1983, Congress used a negative 

rider to block the FCC's liberalization of

S. Rep. No. 182, 100th Cong., 1st
Sess. 76 (1987).

See Astroline Communications Co. 
v. Shurbero Broadcasting of Hartford. Inc.. 
No. 89-700, Brief for F.C.C. at 22-28.



18
its television group ownership rules.23 

This forced the FCC to reconsider, hold 

hearings, and eventually modify the rule to 

Congress' liking.24 An appropriations rider 

in the 1988 Act "prohibited the FCC from 

modifying its rules limiting newspaper- 

television cross-ownership and from 

extending any existing waivers from those 

limits."25 In the Commission's 1989 

appropriations package, Congress directed 

the agency to promulgate regulations before 

January 31, 1989, aimed at enforcing the

23 Federal Communications Commission 
Authorization Act of 1983, Pub. L. No. 98- 
214, 97 Stat. 1467 (codified at 47 U.S.C. 
156) .

24 Amendment of Section 73.3555, 
Memorandum Opinion and Order, 100 F.C.C. 2d 
74, para. 3 (1985) .

25 H.R. Res. No. 395, 100th Cong., 1st 
Sess., 133 Cong. Rec. H12, 805, 14 (daily 
ed. Dec. 22,1987).



19
restrictions on broadcast indecency in 18

*U.S.C. 1464 on a 24-hour a day basis.

Occasionally Appropriations Committees 

have worked their will without legislation 

of any kind. In 1974, a well-publicized 

struggle between the FCC and Congress raged 

over the issue of sex and violence in 

television programming. During the 1960's 

and early 1970's, Congress had held a 

number of hearings about such programming. 

Finally, frustrated with what it perceived 

to be inadeguate Commission attention to 

the problem, the House Appropriations 

Committee issued a report that, in strong 

language, gave the Commission a deadline 

for submission of a report outlining its 

proposals.* 27 * The report warned that while

Pub. L. 100-459? 53 Fed Reg. 52425 
(Dec. 28, 1988). The regulations are found 
at 47 C.F.R. 73 (1989).

27 H.R. Rep. No. 1139, 93rd Cong., 2d
Sess. 15 (1974).



20
[T]he Committee is reluctant to 
take punitive action to require 
the Commission to heed the views 
of the Congress, and to carry out 
its responsibilities ... if this 
is what is required to achieve 
the desired objectives. such 
action may be considered. 8

The Senate appropriations Committee issued

a similar report.29 Eventually

broadcasters, with FCC encouragement and

promotion, adopted the "family viewing

hour. "30

A similar process led the FCC to 

expedite the processing of applications for 

low-power television stations in 1983.31

Another means of Congressional 

oversight and control of the Commission is

S.Rep. No. 1056, 93rd Cong., 2d 
Sess. 19 (1974).

30 Shooshan and Krasnow, supra at 627,
636.

31 S. Rep. 206, 98th Cong., 1st Sess.
23 (1983).



21
the use of moratoria. Moratoria are 

conceptually similar to negative 

appropriations riders. However, rather 

than prohibiting the expenditure of funds, 

they merely disallow the agency from 

implementing a certain rule or decision for 

a given period of time. Though a 

moratorium and an accompanying report may 

convey Congressional views on an issue, its 

usual purpose is to give Congress time to 

review the issue. Thus a moratorium is 

usually used at one stage in an ongoing 

process of Congressional influence.

Congress first imposed a moratorium on 

the FCC in the 98th Congress, amidst the 

syndication and financial interest 

controversy.32 The same Congress imposed a 

six-month moratorium to prevent the FCC

32 Shooshan and Krasnow, supra at 621.



2 2

from repealing the political attack and 

editorializing rules.33

Occasionally, however, a moratorium 

will be the only thing necessary to effect 

the desired FCC response. For instance, 

Congress in 1984 strongly opposed the FCC's 

efforts to modify and eventually eliminate 

its restrictions on group ownership of 

media interest. Shortly after the

Commission announced its final decision to 

replace the rule with a more lenient 

version that would sunset in five years,34 35 

Congress imposed a moratorium on the
. . . 35agency's implementation of the revision. 

During the moratorium, the FCC suspended

" H.R. 2250 98th Cong., 1st Sess. , 129 
Cong. Rec. H9308-11 (daily ed. Nov. 8, 
1983) .

34 Report and Order, 49 Fed. Reg. 
31,877 (1984).

35 Pub. L. No. 98-396, Section 304, 98 
Stat. 1369, 1423 (1984).



23
its "final order", considered the 

legislators' views, and ultimately decided 

upon a rule similar to the lenient one 

previously announced but with a few 

additional features and without the 

automatic sunset provision.36

Similarly, the oversight of various 

standing committees of congress has forged 

a longstanding relationship which adds to 

the expertise gained by Congress in 

considering issues that come before the 

Commission. Since 1946, for example, the 

Commerce Committee of each house has been 

authorized to "make continuing studies of 

the problems in the communications 

industry."37 Each committee holds general 

oversight hearings at the beginning of each

56 Amendment of 73.3555, 100 F.C.C. 2d 
74 (1985).

37 Legislative Reorganization Act of 
1946, Section 136, 2 U.S.C. 190d (1970).



24
session. Subcommittees of the commerce 

committees also hold hearings on specific 

topics. A significant advantage of close 

committee oversight is that "members and 

staff of the congressional committee 

acquire some of the substantive knowledge

In 1971-72, the House 
Subcommittee on Communications and Power 
held hearings on spectrum management, 
diversification of ownership, broadcast 
service to meet community needs, children's 
programming, the fairness doctrine, 
political broadcasting, cable television, 
domestic satellites, common carrier 
activities, and public broadcasting. 
Hearings on the Jurisdiction and Activities 
of the FCC Before the Subcommittee on 
Communications and Power of the House 
Interstate and Foreign Commerce Committee, 
92d Cong., 1st Sess. (1971). Six of seven 
commissioners and key staff members 
testified.

During these hearings, Chairman 
MacDonald recommended that the FCC 
establish a Children's television bureau to 
deal with programming and advertising aimed 
at young people. Four months later the 
Bureau was created. Speech by Dean Burch 
Before the International Radio and 
Television Society in New York, Sept. 13, 
1971.



25
necessary to challenge the agency's 

handling of complex problems."

These committees and their 

subcommittees have played active roles in 

effecting the informal controls so 

effectively used by Congress. More

generally, in 1958 the House Legislative 

Oversight Subcommittee produced a "long and 

comprehensive study" of FCC policies and 

procedures.* 40 The Commission adopted many 

of its suggestions, including: having an

individual commissioner supervise the 

preparation of majority opinions, 

establishing a fee system, and charging

Krasnow and Shooshan, supra at 317.

40 Regulation of Broadcasting, Half a 
Century of Government Regulation of 
Broadcasting and the Need for Further 
Legislative Action, 85th Cong. 2d Sess. on 
H. Res. 99, U.S. Government Printing 
Office, Washington, D.C., 1958, pp. 157-
58.



2 6

broadcasters for special services and 

privileges.41

In the late 1950's and early 1960's 

Congress grew concerned with increased 

"trafficking" in broadcast licenses.42 43 The 

85th Congress authorized a Special 

Subcommittee on Legislative Oversight to 

hold extensive hearings on the issue. 

Though the resulting bill died in the 86th 

Congress, a virtually identical bill was 

pending in the 87th Congress when the FCC 

adopted anti-trafficking rules.44 As a 

result, ostensibly because these rules were 

and continued to be satisfactory to 

Congress, no trafficking legislation 

emerged out of committee after the rules

W. Emery, Broadcasting and 
Government, at 385 (1971).

42 6 0 Tex. L. Rev. 207, note 64.

43 Id.
44 32 F.C.C. 689 (1962).



27
were adopted. That version of the rules 

was cited favorably in a report of the 

House Committee on Commerce.45

The number of committees that have 

assumed oversight responsibilities for the 

FCC has increased significantly. When the 

Communications Satellite Act of 1962 was 

under consideration, FCC Commissioners 

testified before nine different committees 

and subcommittees.46 In the 92d Congress, 

the Senate Agriculture and Forestry 

Committee held hearings on a bill to create 

a rural telephone bank,47 and the House 

Merchant Marine and Fisheries Committee 

considered the Vessel Bridge-to-Bridge 

Radiotelephone Act.48

H. Rep. 97-765.

46 28 Cong. Q. Almanac 551-55 (1963).

47 Pub. L. No. 92-12, 85 Stat. 29
(1971).

48 3 3 U.S.C.A § 1201-08 (1971).



28
This strict oversight by Congressional

Committees has made the FCC extremely

sensitive to the intent and desires of

Congress, and, conversely, allows Congress

to remain abreast of problems, policies and

procedures affecting the broadcast media.

It follows that in determining the basis

for Congressional action, the courts must

look beyond the narrow proceedings that

accompany a single piece of legislation,

and consider the broad expertise and

experience of Congress in legislating in a

particular area over time.

Congress has no responsibility to 
confine its vision to the facts 
and evidence adduced by 
particular parties. Instead its 
special attribute 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.



29
Fullilove v. Klutznick. 448 U.S. 448, 502- 

503 (1980).

II.

CONGRESS HAD SUFFICIENT EVIDENCE 
BEFORE IT TO CONCLUDE THAT 
ENHANCEMENT OF MINORITY OWNERSHIP 
COULD BE EXPECTED TO CONTRIBUTE 
TO THE DIVERSITY OF PERSPECTIVE 

AVAILABLE

The Solicitor General49 and Judge 

Williams in the dissent in below, fault 

Congress for failing to review sufficient 

evidence to draw a conclusion that has 

never been disputed, and that, in fact, has 

been the hallmark of FCC policy for 54 

years: that the principle means of ensuring 

a diversity of programming is through a

Brief For The United States As 
Amicus Curiae Supporting Petitioner, Metro
Broadcasting, Inc.____ v_._____Federal
Communications Commission, et al.. No. 89- 
453.



30
diversity of ownership.50 Created by 

Congress by the Commissions Act of 1934, 

the FCC exercises broad authority to 

regulate the broadcast media for the 

convenience and in the interest of the 

public. 47 U.S.C. § 303. Multiple 

ownership rules, whereby the Commission 

enforces limits on the number of radio and 

television station licenses any person may 

hold, date back to the 1940's. The current 

limit is 12 licenses in each service (AM, 

FM or TV), and no person may hold licenses 

for television stations serving more than

In the 1940's the F.C.C. sought 
through pro-competitive regulations called 
chain broadcasting rules to limit the power 
of the national networks, to prevent 
possible future media concentrations, and 
to promote autonomy of licensees. See 
F.C.C. Report on Chain Broadcasting (1941). 
These regulations were upheld by the 
Supreme Court in NBC v. United States. 319 
U.S. 190, 224, 226-227 (1943).



31
25% of the television households 

nationwide.51

In 1953, the Commission stressed that

its rules limiting multiple ownership of

broadcasting facilities, were designed to

promote diversity of ownership in order to

maximize diversity of ideas, information

and program service.

[T]he fundamental purpose of this 
facet of the multiple ownership 
r u l e s  is to p r o m o t e  
diversification of ownership in 
order to maximize diversification 
of program and service viewpoints 
as well as to prevent any undue 
concentration of economic power 
contrary to the public interest.

Rules and Regulations Relating to Multiple

Ownership of Standard, FM and Television

Minority owners, however, are 
permitted 14 stations per service and up to 
30% of the national TV market. 47 C.F.R. 
§ 73.3555 (1987); Amendment of Section 
73.3555 of the Commission's Rules, 100 
F.C.C. 17 (1984).



32
Broadcast Stations, 18 F.C.C. 288, 291

(1953) .52

In 1965, the Commission released its 

Policy Statement on Comparative Broadcast 

Hearings, 1 F.C.C. 2d 393, 5 R.R. 2d 1901, 

(1965) asserting that "the first amendment 

. . . ' rests on the assumption that the

widest possible dissemination of 

information from diverse and antagonistic 

sources is essential to the welfare of the 

public'". Id. at 394 n.4 (quoting

Associated Press v. United States. 326 U.S. 

1, 20 (1944)).

The Commission has also 
promulgated regulations restricting the 
cross-ownership of television and either 
cable systems or newspapers serving the 
same areas or markets. See 47 C.F.R. § 
76.501 (1987); 47 C.F.R. § 73.3555(c) 
(1987). Here the Commission concluded that 
these regulations advanced the public 
interest by promoting dissemination of 
information from diverse viewpoints. The 
Supreme Court upheld these regulations in 
F.C.C. v. National Citizens Comm. for 
Broadcasting. 436 U.S. 775 (1978).



33
The Commission identified six criteria 

that should be considered in comparative 

hearings, including: diversification of 

control - the aim of which is to prevent 

concentration of ownership control in the 

media;53 and, full-time participation in 

operation by owners - here the Commission 

found that an owner's full-time 

participation promotes sensitivity to 

community needs, fosters better public 

service, furthers the goal of broadcasting 

diverse information, and reduces the 

possibility of ownership of multiple 

stations.54 The Commission noted that its

An applicant with fewer pre­
existing ownership interests in other mass 
media is preferred and gets merit in the 
comparative hearing process. 1965 Policy 
Statement on Comparative Broadcast 
Hearings, 1 F.C.C. 2d 393, 395-395 (1965).

Preferences for minorities are 
subsumed under this category, and thus "the 
relevant consideration is not minority 
ownership per se but the extent to which 
minority owners are integrated into the



34
basic policy objectives were to provide the 

best service to the public by promoting the 

greatest possible diversity of information 

and to ensure the maximum diffusion of 

control of the broadcast industry.55

Noting its belief that diversity of 

control of communications outlets is 

beneficial to a free society and is 

essential when the government limits access 

to the public use of television, the 1965 

Policy Statement made clear that 

concentration of mass media ownership would 

have a deleterious effect on the

proposed station's operation". New 
Continental Broadcasting Co., 88 F.C.C. 2d 
830, 844 (Rev. Bd. 1981).

1965 Policy Statement on 
Comparative Broadcast Hearings, 1 F.C.C. 2d 
393, 395-396 (1965).



35
communication of new and disparate ideas. 

Id. at 394.56

Congress intended for the public 

interest to underlie the issuance of 

broadcast licenses, Radio Station WOW v. 

Johnson. 326 U.S. 120, 131-132 (1945),

which are to be awarded so as "to provide 

a fair, efficient, and equitable 

distribution of radio service". 47 U.S.C. 

§ 307(b). In support of the wide latitude 

granted the Commission to make the 

"predictive judgments" necessary to 

determine what is in the public interest, 

this Court has held that the Commission 

need not come forward with an in-depth

Even in rejecting the "Fairness 
Doctrine" Syracuse Peace Council. 2 F.C.C. 
2nd 5043 (1987), aff *d 867 F.2d 654, 658
(D.C. Cir. 1989), the Commission stated 
that "we do not question the interest of 
the . . . public in obtaining access to
diverse . . . sources of information".
Report Concerning General Fairness Doctrine 
Obligations of Broadcast Licensees, 102 
F.C.C. 2d 143,147 (1985).



36
factual report supporting its conclusions, 

since "the possible benefits of competition 

do not lend themselves to detailed 

forecast." F.C.C. v. R.C.A. 

Communications. Inc.. 346 U.S. 86, 96 

(1953) .
This Court has recognized on a number 

of occasions that diversity of ownership of 

the mass media, including radio and 

television stations, is likely to enhance 

the diversity of ideas and expression 

favored by the First Amendment, and is an 

important societal concern. See, e.g., 

Associated Press v. United States. 326 U.S. 

1, 20 (1945); Red Lion Broadcasting Co. v. 

F.C.C.. 395 U.S, 367, 390 (1967).

In F.C.C. v. National Citizens 

Committee for Broadcasting. 436 U.S. 775, 

780 (1978), for example, this Court 

endorsed the Commission's long-standing 

practice of acting on the theory that



37
"diversification of mass media ownership 

serves the public interest by promoting 

diversity of program and service 

viewpoints, as well as by preventing undue 

concentration of economic power”. There, 

this Court held that it is appropriate for 

the Commission to consider First Amendment 
and antitrust values.

Congress, the Court of Appeals and the 

Commission have all found in one form or 
another that

[I]t is upon ownership that 
public policy places 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, v. F.C.C.. 495 F.2d 929, 937-938

(D.C. Cir. 1973). See Citizens

Communications Center v. F.C.C.. 447 F. 2d

1201, 1213 n.36 (D.C.Cir. 1971); H.R. Rep.

No. 765 at 40; S. Rep. No. 182 at 76;



38
Policy Statement on Comparative Broadcast

Hearings, 1 F.C.C. 2d at 394; 1978 Minority

Policy Statement, 68 F.C.C 2d at 980-981

(Pet. App. 134a-137a)

In 1968, the Report of the National

Advisory Commission on Civil Disorders

(Kerner Commission) focused attention upon

the relationship of minorities and the

media, noting the stereotypical

presentation of blacks on television, the

dominance of the media by whites, and

suggesting a nexus between this and racial

unrest in the country.

The media report and write from 
the standpoint of a white man's 
world. . . . Slights and
indignities are part of the 
Negro's daily life, and many of 
them come from what he now calls 
"the white press" - a press that 
repeatedly, if unconsciously, 
reflects the biases, the 
paternalism, the indifference of 
white America.



39
Id. 366.57

The FCC responded to this by 

instituting a series of antidiscrimination 

and equal employment opportunity 

initiatives, justifying its intervention 

based upon the requirement that broadcast 

licensees serve the entire public.

In 1968, the Commission proposed rules 

to address employment discrimination in the 

broadcast industry.58 In 1969, the

It is noteworthy that in 199 0, 
this continues to be a problem. See. Reed, 
'Black Pathology1 is a Big Business. The 
Philadelphia Inquirer, February 3, 1990 at 
7-A (describing the overreporting and 
overpresentation of black pathology and the 
underreporting and underrepresentation of 
white pathology on television). See also. 
Window Dressing On the Set: Women and 
Minorities in Television, A Report of the 
United States Commission on Civil Rights, 
August 1977; Window Dressing On the Set: an 
Update, A Report of the United States 
Commission on Civil Rights, January 1979.

Petition for Rulemaking to 
Require Broadcast Licensees to Show 
Nondiscrimination in their Employment 
Practices, 13 F.C.C. 2d 766 (1968).



40
Commission required broadcasters to adopt

equal opportunity programs.59 And, in 1970,

the Commission required broadcasters to

file annual reports on their employment by

racial categories.60

In 1970, the Court of Appeals for the

District of Columbia61 held that comparative

hearings considering the effect on

diversity of programing were necessary.

Since one very significant aspect 
of the "public interest, 
convenience, and necessity" is 
the need for diverse and 
antagonistic sources of 
information, the Commission 
simply cannot make a valid public 
interest determination without 
considering the extent to which

Nondiscrimination in Broadcast 
Employment, 18 F.C.C. 2d 240 (1969).

Petition for Rulemaking to 
Require Broadcast Licensees to Show 
Nondiscrimination in Employment Practices, 
23 F.C.C. 2d 430 (1970).

The District of Columbia Circuit 
is charged by the Act with original 
jurisdiction to hear appeals of FCC 
decisions, 47 U.S.C. § 402



41
the ownership of the media will 
be concentrated or diversified by 
the grant of one or another of 
the applications before it.

Citizens Communications Center v. F.C.C..

447 F.2d 1201, 1213 n.36 (D.C. Cir. 1971)

III.
AFRICAN AMERICAN MEDIA DEMONSTRABLY 
PRESENTS A DIFFERENT PERSPECTIVE AND 
EMPHASIS THAN THAT PRESENTED BY THE 

MAJORITY MEDIA

The Congressional finding that 

diversity of ownership results in diversity 

of programming is amply illustrated by the 

experience of black media. Perhaps the 

best and longest running example can be 

found in the black press. Dating back to 

1830, the black press' raison d'etre lay in 

what John Russwurm, co-publisher of the



42
first black newspaper, Freedom Journal,

wrote in the first edition of the paper,62

We wish to plead our own cause.
Too long have others spoken for 
us. Too long has the public been 
deceived by misrepresentations in 
things which concern us dearly.

Today that difference is no less

profound.

The black press differs from the 
white (press) not so much in kind 
as in message. It reports news 
not covered by other journalism.
It interprets that news 
differently, from an uncommon 
standpoint. It ventures opinions 
about matters not dealt with by 
other presses and its opinions 
frequently vary from those of

Freeman's Journal, (16 March 
1827), reprinted in Martin E. Dann, The 
Black Press: 1827-1890 (New York: Putman & 
Sons, 1971), See also, Jeter, James 
Phillips, "A Comparative Analysis of the 
Programming Practices of Black-Owned Black- 
Oriented Radio Stations and White-Owned and 
B l a c k - O r i e n t e d  Stations, Ph.D. 
Dissertation, University of Wisconsin, 1981 
p.34.(Hereafter cited as Jeter).



43
other publications treating the 
same tppics. 63

During the past ten years there have 

been a number of academic studies examining 

the impact of minority ownership to see how 

it relates to service to minority 

communities. While these studies do not 

necessarily show a quantitative difference 

between white-owned and minority-owned 

stations in their commitment to news, 

public affairs and other non-entertainment 

programming,64 they have found qualitative 

differences that reflect the diversity of

Roland E. Wolseley, The Black 
Press: U.S.A. (Ames, Iowa: Iowa State 
University Press, 1971), p.14.

Jeter, supra at pp. 136-142; 
Schement, Jorge Reina and Singleton, Loy A. 
"The Onus of Minority Ownership: FCC Policy 
and Spanish-Language Radio, Journal of 
Communication 31 (Spring 1981) 78-83.



44
content or perspective that the FCC policy 

is designed to foster.65

For example, when black-oriented radio 

stations licensed to white owners were 

compared to those licensed to black owners, 

black owners differentiated their product 

more than white owners, thus displaying 

more diversity of content with respect to

The Washington Post reported in 
1973, that the influx of black owners would 
bring about a "new wave in content of 
black-oriented radio". The Post 
particularly noted the case of WSOK in 
Savannah, Georgia, which underwent a 
drastic change in its programming when the 
station changed from a White-Owned Black- 
Oriented Radio Station to a Black-Owned 
Black-Oriented Radio Station. Examining 
this development the Post quoted Theodore 
Ledbetter, a Washington, D.C. - based 
communications consultant, who said:

Part of the new format being set up by 
black owners is less rigid 
programming. In the old days all you 
heard was James Brown and Wilson 
Pickett. This barred people like 
Nancy Wilson and almost all jazz 
artists.

Hollie West, "Black Radio: A Question of 
Ownership and Control," Washington Post. 29 
January 1973, Sec. B. p. 5, Col. 2-3



45
their entertainment programming,66 A 

related study focusing more particularly on 

qualitative issues found that a black-owned 

television station featured content that 

accurately reflected the owner's goals 

regarding specialized service to the black 

community.

Specifically, ownership and 
management wanted more news about 
e d u c a t i o n ,  e m p l o y m e n t ,  
international affairs with 
emphasis on black nations, and 
more community events and "people 
in the news" items. BCN [Big 
City News, the half-hour, daily, 
local newscast, broadcast by WGPR 
a black-owned UHF independent 
station serving the Detroit 
market] wanted to de-emphasize 
crime as news while emphasizing 
positive aspects of black Detroit 
through its "people in the news" 
and community events coverage.
BCN wanted to emphasize coverage 
of the city of Detroit, and not 
the suburbs, and to report often 
on "racially significant" aspects 
of the news. The ownership and 
management also wanted to show a 
high number of blacks in the news 
as a vehicle to help make WGPR

66 Jeter, supra at pp. 136-142.



46
part of the black community and 
to involve the community in the 
station. This was also seen as 
a way to raise viewer 
consciousness about the role of 
black Americans in city, state, 
national, and even international 
events.67

Another study analyzed four minority 

owned stations serving different 

populations with different philosophies of 

ownership obligations to the minority 

communities they serve and/or spring from.68 

This study analyzed the programming content 

of Hispanic-owned and Hispanic-oriented 

KORO-TV in Corpus Christi, Texas; Black-

Fife, Marilyn Diane, "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 Broadcasting, Office of 
Research and Planning, September, 1979 
pp.44-45.

zo Fife, Marilyn Diane, "The Impact 
of Minority Ownership on Minority Images in 
Local TV News", Presented at the 15th 
Annual Howard University Communications 
Conference, Washington, D.C., February 13- 
16, 1986.(Hereafter Fife, 1986)



47
owned and Black-oriented WGPR-TV in 

Detroit, Michigan; majority black-owned69 

but mainstream oriented WLBT-TV in Jackson, 

Mississippi; and black-owned WVII-TV in 
Bangor, Maine.

The study defines ''narrowcasting" as 

arising where the minority ownership 

targets their own racial/ethnic community 

as a focus of service, and "mainstreaming" 

as where the minority ownership targets the 

general community in a manner common to 

commercial broadcast TV outlets, but imbues 

their service with a commitment to cultural 

pluralism rarely seen in majority- 

controlled TV outlets.

This study concluded that 

"narrowcasting" stations such as KORO and 

WGPR sought "to use a major form a mass

Sources vary on the precise 
percentage of black ownership, with 
statements ranging from 51% to 55%.



48
communication to validate and to showcase 

a minority culture” and "to create a 

broadcast institution that can function as 

a resource for a minority community at the 

local level".70 Minority owned 

mainstreaming stations, such as WLBT were 

seen as attempting "to use a major form of 

mass communication to legitimize different 

components of the same community".

However, in the case of WVII, where 

neither narrowcasting or mainstreaming were 

possible because of the lack of a 

substantial minority community, the study 

nevertheless found that the minority owners 

showed a "special sensitivity to community 

needs and a willingness to take chances on 

non-traditional people in key positions".71

See Fife 1986, supra
71 Id. at 26.



49
Percy Sutton, Chairman of Inner City 

Broadcasting, testifying before a 

Congressional Committee in 1989, gave as an 

example of the impact a black-owned radio 

station may have on politics and culture - 

even in the highly competitive media market 

of New York City - the victory of David 

Dinkins, an African American, in the 

Democratic primary for Mayor of New York 
City.

In his acceptance speech- 
rather, the speech of thanks to 
his constituents, to the voters 
and others-he said, I want to 
thank Mr. Sutton and the WLIB 
family. Without the WLIB family 
permitting us to communicate, I 
could not possibly have won this 
Democratic primary. WLIB is a 
daytime radio station.

It is the only daytime radio 
station in the City of New York. 
In evaluating where he would 
place the campaign manager, in 
evaluating where he would place 
his advertisements, his 
commercials, he found that to 
reach the black community . . .
that he needed to reach, from 
which he came, the number one



50
station to reach that community 
was WLIB, a daytime station.72

Significantly, the Congressional

Research Service was quite clear as to the

conclusion to be drawn from its analysis of

the impact of black ownership on program

content and perspective.

[T]hese data indicate that 
certain conditions in ownership 
and in programming exist which 
suggest a positive relationship 
between minority broadcast 
station ownership and minority 
programming. That is, where 
minority ownership was found to 
exist among stations, that group 
of stations p r o g r a m m e d

Hearing Before the Subcommittee 
on Communications of the Committee On 
Commerce, Science, and Transportation, 
United States Senate, 101st Congress, 1st 
Session on Minority Ownership of Broadcast 
Stations, September 15, 1989, p.24. See 
also at 25: "A recent poll conducted by 
New York Newsday by the Gallup Organization 
found that nearly 7 out of 10 Black New 
Yorkers surveyed said that they look to 
WLIB, its sister station WBLS (FM) and the 
City's leading Black weeklies as a source 
of news. Even more impressive, one quarter 
of those questioned said they rely on 
Black-owned radio and publications as their 
most important news source!"



51
proportionately more to their own 
minority audiences as well as to 
other minority audiences than did 
those stations with no minority 
owners.73

Undergirding the fact of the 

recognition by Congress, the FCC and until 

now, the Court of Appeals, that diversity 

of ownership equals diversity of 

perspective, is the related recognition of 

the harm done by the exclusion of blacks 

from participation in the broadcast 

industry.

Because blacks were not pleading 
their own cause, the content of 
the media became a voice to them 
rather than a voice by them. 
Because black people had no input 
into the ownership and decision­
making function of hiring, 
program production, budgeting, 
promotion and scheduling; the 
result was a long line of 
situation comedies on television, 
"blaxploitation" films and "soul"

"Congressional Research Service, 
Minority Broadcast Station Ownership and 
Broadcast Programming: Is There A Nexus?" 
at CRS-42.



52
radio stations which were nothing 
more than jukeboxes.74

IV.
CONGRESS HAS BROAD DISCRETION TO 
DETERMINE THE HARM DONE BY RACIAL 
DISCRIMINATION AND TO FORMULATE A 
REMEDY FOR THAT DISCRIMINATION

In City of Richmond v. J.A. Croson 

Co.. 109 s.ct 706 (1989), this Court held

that racial preferences granted by state or 

local governments violate the Fourteenth 

Amendment's ban on governmental 

discrimination unless they are narrowly 

tailored to meet a compelling public 

interest. Thus while Croson marked the 

first time that a majority of the Court 

adopted strict scrutiny in the affirmative 

action context, it cannot be read as 

prohibiting Congress from taking race­

74 Jeter, supra at 10.



53
conscious action when it is necessary to 

meet a compelling public interest.

Indeed, even as applied to state and 

local governments, if the strict scrutiny 

components are met, then remedial race- 

conscience measures will be upheld. On the 

other hand, the Court in Croson 

acknowledged that the constitutional 

requirements are less stringent for the 

remedial race-conscience measures enacted 

by the federal government, than for those 

enacted by state and local governments.

Relying on and reaffirming Fullilove 

v. Klutznick. 448 U.S. 448 (1980), Justice 

O'Connor explicitly recognizes that 

Congress possesses "unique remedial powers" 

that enables it to use race-conscious



54
relief where states and cities cannot, 

Croson. 109 S.Ct. at 718.75

The distinctions that Croson 

acknowledged between federal and state 

power to use race-conscious measures means 

that even applying strict scrutiny, 

Congress retains significant discretion. 

It follows that the broader federal 

authority allows Congress to establish the 

factual predicate for its racial 

preferences without making findings of the 

same degree of precision and specificity as 

states and their subdivisions. Moreover, 

in analyzing whether a federal remedy is 

"narrowly tailored" to achieve a compelling

The Solicitor General concedes 
that the nature of the Congress demands 
that its determinations in this area be 
given greater deference then that accorded 
state and local bodies under Croson. 
However, notwithstanding that concession 
the Solicitor General so narrowly defines 
the scope of that deference so as to leave 
it a distinction without a difference. U.S. 
Brief, Metro at 12.



55
interest, the courts must similarly pay 

more deference to Congress’ selection of 

the appropriate remedy then they would to 

the choices of state and local governments.

Examining the factual predicate of the 

plan at issue in Croson. this Court held 

that local government officials could only 

impose a race-conscious remedy if they had 

sufficient evidence of identified 

discrimination in a particular industry 

within their jurisdiction. Mere societal 

discrimination against minorities was held 

to be insufficient as a factual predicate.

Conversely, the Court reiterated the 

holding of Fullilove, that Congress "may 

identify and redress the effects of 

society-wide discrimination". Croson. 109 

S.Ct. at 719. In Fullilove. the Court 

found it unnecessary for Congress to have

had before it evidence of identified



56
instances of racial discrimination in the 

national construction industry.

Of course, this does not imply that 

Congress need make no findings whatsoever, 

or that it can simply take legislative 

notice of our nation's sordid history in 

race relations. However, in assessing the 

effects of societal discrimination in the 

broadcast industry, Congress must certainly 

be free to rely upon "information and 

expertise that Congress acquires in the 

consideration and enactment of earlier 

legislation", Fullilove. supra. 448 U.S. at 

502-503, and the courts should pay due 

deference to that expertise.

Contrary to the arguments of the 

Solicitor General, Congressional remedies 

need not be so narrowly tailored as to be 

"victim specific".76

76 U.S.Brief, Metro at p.23.



57
[I]t is agreed that a plan need not be 
limited to the remedying of specific 
instances of identified discrimination 
for it to be deemed sufficiently 
"narrowly tailored," or "substantially 
related," to the correction of prior 
discrimination by the state actor.

Wvaant v. Jackson Board of Education. 476

U.S. 267, 287 (O'Connor, J. , concurring)

(1986).

This Court has not limited its

endorsement of sufficiently compelling

justifications for racial classification to

remedying the effects of identified present

or past racial discrimination.

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.

Wyqant. supra, 476 U.S. at 286 (Citing

Regents of University of California v.

Bakke, 438 U.S. 265, — - (1978) (Powell,

J.); NAACP V . FPC. 425 U.S. 662, 670 n.7

(1976), (FCC regulations dealing with



58
employment practices "can be justified as 

necessary to enable the FCC to satisfy its 

obligation under the Communications Act of 

1934 . . .  to ensure that its licensees' 

programming fairly reflects the tastes and 

viewpoints of minority groups.") See also, 

Crpson, 109 S.Ct. at 731 & n.2 (Stevens, 

J., concurring).

The principle predicate for all race­

conscious measures is the awareness that 

past discrimination and exclusion has 

continuing effects which the society wishes 

to change. However, those effects are not 

limited to individual victims of 

discrimination, or to members of the 

community who share the economic 

deprivation and discrimination, directly 

and indirectly. Rather, the effects 

include the harm done to the society as a 

whole, which denies itself the full benefit



59
of the genius, labor and enthusiasm of a

significant number of its citizens.

Lack of minority representation 
among owners of broadcast 
stations, the Commission held,
"is detrimental not only to the 
minority audience but to all of 
the viewing and listening public. 
Adequate representation of 
m i n o r i t y  v i e w p o i n t s  in 
programming serves not only the 
needs and interests of the 
minority community but also 
enriches and educates the non­
minority audience."77

The minority ownership policies seek 

to enhance diversity in perspective in the 

broadcast media: a First Amendment

imperative that overlaps with the 

Commission's mandate to regulate the 

industry in the public interest, without 

directly regulating content.

This goal intersects with the Equal 

Protection values of the Fifth and

Brief For Federal Communications 
Commission, Astroline v. Shurberq. No. 89- 
700, at 7.



60
Fourteenth Amendments, in that prior 

discrimination, both societal and industry- 

specific, has lead to a lack of minority 

perspective and participation in the 

broadcast media.

Applying its traditional approach of 

promoting broadcast diversity by insisting 

on diversity of ownership, the FCC has 

addressed the need of insuring diversity of 

perspective, by insisting that the 

perspective of minority populations be 

included in the broadcast spectrum.

The Commission's initial attempts to 

achieve this end via Equal Employment 

Opportunity regulations and ascertainment 

policies;78 relaxation of minimum showings

1978 Minority Policy Statement, 
68 F.C.C. 2d at 981 (Pet. App. 1301-331); 
Random Selection/Lottery Systems, 88 F.C.C. 
2d 476, 489 (1981).



61
of financial qualifications;79 and, 

increasing the number of new broadcast 

stations available for initial licensing;80 

failed to achieve the desired goal of 

increased minority perspective and 
participation.

The minority enhancement and distress 

sale policies are an effort to obtain this 

goal utilizing the traditional method of 

FCC regulation, i.e., by looking to 

ownership, and encouraging minority

See FCC Minority Ownership Task 
Force, Minority Ownership in Broadcasting 
(1978) at 11-12; New Financial 
Qualifications for Aural Applicants, FCC 
78-556 (Aug. 2, 1978); New Financial 
Qualifications Standard for Broadcast 
Television Applicants, FCC 79-299 (May 11, 
1979)

See e.g., Availability of FM 
Broadcast Assignments, 101 F.C.C. 2d 638
(1985) , reconsid. granted in part and 
denied in part, 59 Radio Reg. 2d (P&F) 1221
(1986) , aff'd, National Black Media 
Coalition v. F.C.C. 2d 277 1345 (1980).



62
ownership. These policies were based on

the Commission's belief that

" [f ]ull minority participation in 
the ownership and management of 
broadcast facilities results in 
a more diverse selection of 
programming . . ." and that
"[a]dequate representation of 
m i n o r i t y  v i e w p o i n t s  in 
programming . . . 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 981 (Pet.App. 134a) .81

Brief For Federal Communications 
Commission, Astroline v. Shurberg, No. 89- 
700, at 6 (citing 1978 Minority Policy 
Statement, 68 F.C.C. 2d at 981) (Pet.App. 
134a, 133a).



63

CONCLUSION

For the above reasons the decision of 

the Court of Appeals should be affirmed.

JULIUS L. CHAMBERS 
CHARLES STEPHEN RALSTON 
RONALD L. ELLIS 
ERIC SCHNAPPER 
CLYDE E. MURPHY*
99 Hudson Street 
Suite 1600
New York, New York 10013 
(212) 219-1900

Nolan A. Bowie, J.D. 
Temple University 
220 Tomlinson Theatre 
Philadelphia, PA.
19122

Counsel for Amicus

♦Counsel of Record