Metro Broadcasting, Inc. v. Federal Communications Commission Brief Amicus Curiae Supporting Petitioner

    No. 89-453

3 n  tfje Suprem e Court of ttje Uru'teti i§>tateg
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 FOR THE UNITED STATES AS AMICUS CURIAE 
SUPPORTING PETITIONER

John G. Roberts, Jr.
Acting Solicitor General

James P. Turner 
Acting Assistant Attorney General

Thomas W. Merrill 
Deputy Solicitor General

Roger Clegg
Deputy Assistant Attorney General 

Michael R. Lazerwitz 
Assistant to the Solicitor General 
Department o f Justice 
Washington, D.C. 20530 
(202) 633-2217



QUESTION PRESENTED

Whether the Federal Communications Commission’s policy of 
awarding a qualitative enhancement for minority ownership in 
comparative license proceedings violates the equal protection com­
ponent of the Fifth Amendment.

(I)





TABLE OF CONTENTS

Interest of the United States . . . . . . . . . . . . . . . . . . . . . .  1
Statement ....................................................... ............... .. 2
Summary of argument .............................................. .... 6
Argument:

The Federal Communications Commission’s policy 
of awarding a qualitative enhancement for minori­
ty ownership in comparative license proceedings 
violates the equal protection component of the Fifth 
Amendment  .................................................  8

I. Classifications by the federal government on
the basis of race may be sustained only if “nar­
rowly tailored” to achieve a “compelling” in­
terest ...................................................   8

II. The Federal Communications Commission’s
policy of awarding a qualitative enhancement 
for minority ownership in comparative license 
proceedings is not “narrowly tailored” to 
achieve a “compelling” interest ...................  17

Conclusion ....................       30

TABLE OF AUTHORITIES

Cases:
Associated Press v. United States, 326 U.S. I

(1945) .........................................    24
Astroline Communications Co. v. Shurberg Broad­

casting o f Hartford, Inc., cert, granted, No. 89-700
(Jan. 8, 1990) ........................................................ 3

Bolling v. Sharpe, 347 U.S. 497 (1954) ..............  9, 13
Brown v. Board o f  Educ., 347 U.S. 483 (1954).. 9
Buckley v. Valeo, 424 U.S. 1 (1976).................... 12
Califano v. Goldfarb, 430 U.S. 199 (1977) . . . . .  17
City o f  Richmond v. J.A. Croson Co., 109 S. Ct.

706 (1989)...............................................................passim

Page

(III)



Dellmuth v. Muth, 109 S. Ct. 2397 (1989) ........ 15
FCC v. National Citizens Comm, fo r Broadcasting,

436 U.S. 775 (1978) ....................' ......................  24, 25
Faith Center, Inc., 3 F.C.C. Red 868 (1988) . . . .  5
Frontiero v. Richardson, 411 U.S. 677 (1973) . . .  17
Fullilove v. Klutznick, 448 U.S. 448 (1980)........ 9, 11,

12, 14, 15, 16, 20, 22, 23
Garrett v. FCC, 513 F,2d 1056 (D.C. Cir.

1975)  ............................................................. 2
Hampton v. Mow Sun Wong, 426 U.S. 88

(1976) .................................... .................. 12, 14, 15, 19
Hirabayashi v. United States, 320 U.S. 81

(1943) ............................... ............ .....................  9
INS v. Chadha, 462 U.S. 919 (1983).................. 26
Johnson v. Robison, 415 U.S. 361 (1974)..........  12
Jones v. Alfred H. Mayer Co., 392 U.S. 409

(1968) .......................................   19
Katzenbach v. Morgan, 384 U.S. 641 (1966) . . . .  14, 16 
Korematsu v. United States, 323 U.S. 214

(1944) ...............................................   13
Loving v. Virginia, 388 U.S. 1 (1967).................. 9, 25
Metro Broadcasting, Inc.:

96 F.C.C.2d 1073 (1983) ................................ 4
99 F.C.C.2d 688 (1984) ................................  4
2 F.C.C. Red 1474 (1987).............................  5
3 F.C.C. Red 866 (1988) ...............................  5

Miami Herald Publishing Co. v. Tornillo, 418 U.S.
241 (1974) .............................................................  24

Myers v. United States, 272 U.S. 52 (1926)........  13
NAACP  v. FPC, 425 U.S. 662 (1976)................ 14
Palmore v. Sidoti, 466 U.S. 429 (1984).............. 9
Regents o f the University o f  Cal. v. Bakke, 438 U.S.

265 (1978) .................................................10, 21, 24, 25
Roberts v. United States Jaycees,. 468 U.S. 609

(1984)     10
Rostker v. Goldberg, 453 U.S. 57 (1981).............. 17
SEC v. Chenery Corp., 318 U.S. 80 (1943)........  22

IV

Cases —Continued: Page



V

Steele v. FCC, 770 F.2d 1192 (D.C. Cir.
1985) .............................      4

Strauder v. West Virginia, 100 U.S. 303 (1880) .. 9
Swann v. Charlotte-Mecklenburg Bd. o f  Educ., 402

U.S. 1 (1971) ...............     9
Syracuse Peace Council v. FCC, 867 F.2d 654 (D.C.

Cir. 1989), cert, denied, No. 89-312 (Jan. 8,
1990) ...................................................................    28

Tafflin v. Levitt, No. 88-1650 (Jan. 22, 1990) .. 26
TV 9, Inc. v. FCC, 495 F.2d 929 (D.C. Cir. 1973),

cert, denied, 419 U.S. 986 (1974) .............. . 2, 3
TVA v. Hill, 437 U.S. 153 (1978) ........... ..........  19
United States v. Paradise, 480 U.S. 149 (1987) .. 9, 11,

13, 23, 29
Vance v. Bradley, 440 U.S. 93 (1979) . . . . . . . . . .  15
WPIX, Inc., 68 F.C.C.2d 381 (1978).................. 2, 3
Weinberger v. Wiesenfeld, 420 U.S. 636 (1975).. 12, 17 
West Michigan Broadcasting Co. v. FCC, 735 F.2d 

601 (D.C. Cir. 1984), cert, denied, 470 U.S. 1027
(1985) ...................................... .. 5, 6

Wygant v. Jackson Bd. o f  Educ., 476 U.S. 267
(1986) ...........................................................  6, 9, 10, 11,

20, 21, 24, 25, 29

Cases —Continued: Page

Constitution, statutes, and regulation:
U.S. Const.:

Amend. V ...................................................12, 13, 18
Amend. XIII § 2 ................................... 19
Amend. XIV ............................................... 1, 12, 13,

14, 18, 19, 25
§ 1 ................................... ..................... 13, 18, 25

Equal Protection Clause ................ 12, 25
§ 5 ...................................................13, 14, 18, 25

Civil Rights Act of 1964, 42 U.S.C. 2000a et seq.:
42 U.S.C. 2000e-5(f)(l) ................................ 1
42 U.S.C. 2000h-2 . . . . . . . . . . . . . . . . . . . . . .  1



VI

Communications Act of 1934, 47 U.S.C. 151 etseq
47 U.S.C. 151 .......... ......................................  2
47 U.S.C. 155(c)(3)....................   4
47 U.S.C. 301 ................................................  2
47 U.S.C. 303 ..........................    2
47 U.S.C. 307 ................................................  2
47 U.S.C. 309(i) ............................................  6
47 U.S.C. 309(i)(3)(A) ................ ................. 3, 19, 20

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 ...............      5, 19

Departments of Commerce, Justice, and State, the 
Judiciary, and Related Agencies Appropriations 
Act, 1989, Pub. L. No. 100-459, 102 Stat. 
2216-2217 .............................................................  5, 19

Departments of Commerce, Justice, and State, the 
Judiciary, and Related Agencies Appropriations 
Act, 1990, Pub. L. No. 101-162, 103 Stat. 
1020-1021 ............................................................. 5, 19

Radio Act of 1927 (Act of Feb. 23, 1927), ch. 169,
44 Stat. 1162 ....................................................... 18

26 U.S.C. 1071 ....................................................... 3
28 U.S.C. 518(a) .....................................    1
28 C.F.R. 0.20(a) ..................................................  1

Miscellaneous:
Amendment o f  § 73.606(b), Table o f  Assignments, 

Television Broadcast Stations (New Smyrna 
Beach, Orlando, and Winter Park, Florida), 50 
Rad. Reg. 2d (P & F) 1714 (1982).................... 3

Broadcast/Mass Media Application Statistics, FCC 
Ann. Rep. (Fiscal Years 1979-1988) ................ 21

Statutes and regulation —Continued: Page



VII

133 Cong. Rec. S14,395 (daily ed. Oct. 15,
1987) ...................................         26

134 Cong. Rec. 810,021 (daily ed. July 27,
1988) .............................. ....................... ........... . 26, 27

Congressional Research Service, Minority Broadcast 
Station Ownership and Broadcast Programming:
Is There A  Nexus? (June 29, 1988) . . . . . . . . . .  27

H.R. Conf. Rep. No. 208, 97th Cong., 1st Sess.
(1981) .............................................   19

H.R. Conf. Rep. No. 765, 97th Cong., 2d Sess.
(1982) ..........................   19

Minority Ownership o f  Broadcast Stations: Hearing
Before the Subcomm. on Communications o f  the 
Senate Comm, on Commerce, Science, and Trans­
portation, 101st Cong., 1st Sess. (1989).......... 26, 27

Minority Ownership Taskforce, FCC, Minority
Ownership in Broadcasting (1978) ....................  2, 28

Minority-Owned Broadcast Stations: Hearing on 
H.R. 5373 Before the Subcomm. on Telecom­
munications, Consumer Protection, and Finance 
o f the House Comm, on Energy and Commerce,
99th Cong., 2d Sess. (1986) ..............................  26

Minority Participation in the Media: Hearings Before 
the Subcomm. on Telecommunications, Consumer 
Protection, and Finance o f  the House Comm, on 
Energy and Commerce, 98th Cong., 1st Sess.
(1983) ............................................... ..................  26

Parity fo r  Minorities in the Media: Hearing on H.R.
1155 Before the Subcomm. on Telecommunica­
tions, Consumer Protection, and Finance o f  the 
House Comm, on Energy and Commerce, 98th 
Cong., 1st Sess. (1983) ............... .......................  26-27

Policy Statement on Comparative Broadcast Hear­
ings, 1 F.C.C.2d 393 (1965) ...................... . 2

Miscellaneous —Continued: Page



VIII

Reexamination o f  the Commission’s Comparative 
Licensing, Distress Sales and Tax Certificate 
Policies Premised on Racial, Ethnic, or Gender

Miscellaneous —Continued: Page

Classifications, 1 F.C.C. Red 1315 (1986), 
modified, 2 F.C.C. Red 2377 (1987) ................  1

Report Concerning General Fairness Doctrine Obli­
gations o f  Broadcast Licensees, 102 F.C.C.2d 143 
(1985) ............................................ .....................  28

S. Rep. No. 182, 100th Cong., 1st Sess. (1987) .. 20, 26 
S. Rep. No. 388, 100th Cong., 2d Sess. (1988) .. 20
Statement o f  Policy on Minority Ownership o f  

Broadcasting Facilities, 68 F .C .C .2d 979 
(1978) .............................................................2, 3, 22, 28

The Federalist No. 10 (J. Madison) (C. Rossiter ed.
1961) -. 13



3 n  tf)t Suprem e Court of tt)t Unitetr states;
O c t o b e r  Term , 1989

No. 89-453
M e t r o  B r o a d c a s t in g , In c ., p e t it io n e r  

v.
F e d e r a l  C o m m u n ic a t io n s  C o m m is s io n , e t  a l .

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

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE 
SUPPORTING PETITIONER

INTEREST OF THE UNITED STATES

The United States is responsible for enforcing many statutes 
prohibiting discrimination on the basis of race or national origin 
(see, e.g., 42 U.S.C. 2000e-5(f)(1)), and may intervene in cases 
brought under the Fourteenth Amendment (see, e.g., 42 U.S.C. 
2000h-2). In this case, the United States filed a brief as amicus 
curiae in the court of appeals, and twice filed extensive comments 
with the Commission as part of the inquiry proceeding to con­
sider the validity of its minority preference policies.1 In each of 
these submissions, the United States maintained that the Com­
mission’s policies could not withstand the exacting scrutiny re­
quired by the Constitution and this Court’s decisions, and were 
thus invalid. The United States adheres to that position.2

1 See Reexamination o f  the Commission’s Comparative Licensing, Distress 
Sales and Tax Certificate Policies Premised on Racial, Ethnic, or Gender 
Classifications, 1 F.C.C. Red 1315 (1986), modified, 2 F.C.C. Red 2377 (1987).

2 Given the position of the United States on the question presented, and in 
order for the Court to have the benefit of the views of the administrative agen­
cy involved, the Acting Solicitor General has authorized the Federal Com­
munications Commission to appear before this Court through its own attorneys. 
See 28 U.S.C. 518(a); 28 C.F.R. 0.20(a).

(1)



2

STATEMENT

1. In the Communications Act of 1934, Congress assigned 
the Federal Communications Commission (FCC) exclusive 
authority to grant licenses to build and operate radio and televi­
sion stations in the United States. See 47 U.S.C. 151, 301, 303, 
307. When two or more persons file mutually exclusive applica­
tions for the same broadcasting authority, the FCC conducts what 
is known as a comparative hearing to determine which applicant 
will best serve the “public convenience, interest, or necessity.” 
47 U.S.C. 303. See generally Policy Statement on Comparative 
Broadcast Hearings, 1 F.C.C.2d 393, 394 (1965) [7965 Policy 
Statement]. In such a proceeding, the FCC weighs both “quan­
titative” and “qualitative” attributes of competing applicants. The 
quantitative assessment generally rests on each applicant’s pro­
portional integration of ownership into management and each 
applicant’s other media holdings. If one applicant has a clear 
quantitative advantage, then that applicant will receive the license 
if he is otherwise qualified. Pet. App. 4a. If there are no signifi­
cant quantitative differences among the applicants, the FCC then 
assesses each applicant’s relative strengths on a variety of 
“qualitative” factors. These factors include local residence, par­
ticipation in civic activities, past broadcast experience, and —of 
particular relevance here —the race (and gender) of the owner. 
See Pet. App. 4a; WPIX, Inc., 68 F.C.C.2d 381, 41 l r412 (1978).

As originally conceived and implemented, the FCC’s selection 
criteria for comparative license proceedings were race-neutral. 
However, in response to decisions of the District of Columbia 
Circuit, see, e.g., T V 9, Inc. v. FCC, 495 F.2d 929 (1973), cert, 
denied, 419 U.S. 986 (1974); Garrett v. FCC, 513 F.2d 1056 
(1975), the FCC adopted a policy of awarding preferences in com­
parative proceedings for minority ownership. See Statement o f  
Policy on Minority Ownership o f  Broadcasting Facilities, 68 
F.C.C.2d 979, 980-981 (1978) [1978 Policy Statement]; WPIX, 
Inc., 68 F.C.C.2d at 411-412; Minority Ownership Taskforce, 
FCC, Minority Ownership in Broadcasting 1-3, 8-12, 30-31 (1978) 
[Task Force Report], The Commission explained that the policy



3

was required because “[fjull.minority participation in the owner­
ship and management of broadcast facilities results in more 
diverse selection of programming * * * [, and] an increase in 
ownership by minorities will inevitably enhance the diversity of 
control of a limited resource, the [broadcast] spectrum.” 1978 
Policy Statement, 68 F.C.C,2d at 981.3

For purposes of the preference policy, the Commission defined 
“minorities” to include “those of Black, Hispanic Surnamed, 
American Eskimo, Aleut, American Indian and Asiatic American 
extraction.” 1978 Policy Statement, 68 F.C.C.2d at 980 n.8. 
Minority ownership and participation in management is a “plus- 
factor [to be] weighed along with all other relevant factors in 
determining which applicant is to be awarded a preference.” TV  
9, Inc., 495 F.2d at 941 n.2. The FCC awards a credit for minority 
ownership to the extent that an individual minority owner will 
actively participate in the management of the station. See id. at 
941; WPIX, Inc., 68 F.C.C.2d at 411-412.

2. In 1982, the FCC assigned a new UHF television channel 
to Orlando, Florida. See Amendment o f § 73.606(b), Table o f  
Assignments, Television Broadcast Stations (New Smyrna Beach, 
Orlando, and Winter Park, Florida), 50 Rad. Reg. 2d (P & F) 
1714 (1982). The following year, competing applications to build 
and operate that television station were filed with the FCC by 
three entities: petitioner Metro Broadcasting, Inc., a corporation 
owned by nine men, four of whom are local residents and

3 This programming diversity rationale undergirds other FCC policies de­
signed to promote greater minority participation in broadcasting. Since 1978, 
the FCC has sought to increase such minority participation by awarding tax 
incentives to station owners who sell facilities to minority-controlled applicants. 
See 26 U.S.C. 1071; 1978 Policy Statement, 68 F.C.C.2d at 982-983. By statute, 
Congress has also directed the FCC to use minority preferences in the assign­
ment by lottery of certain low-power stations. See 47 U.S.C. 309(i)(3)(A).

Moreover, in 1978, the FCC adopted its “distress sale” program, under which 
licensees, under certain circumstances, may sell stations at below market prices 
rather than risk revocation or nonrenewal of the license—but only to minority- 
controlled buyers. 1978 Policy Statement, 68 F.C.C.2d at 983. The validity of 
that program is before the Court in Astroline Communications Co. v. Shurberg 
Broadcasting o f  Hartford, Inc., cert, granted, No. 89-700 (Jan. 8, 1990).



4

one of whom is black; Rainbow Broadcasting Company, a general 
partnership consisting of two women and one man, all of whom 
are Hispanic; and Winter Park Communications, Inc., a corpora­
tion with no minority ownership. Pet. App. 2a-4a, 81a-88a; Metro 
Broadcasting, Inc., 96 F.C.C.2d 1073, 1079-1086 (1983). After 
disqualifying Rainbow for misrepresentations in its proposal, the 
administrative law judge granted the license to petitioner, con­
cluding that it was “an overwhelming comparative winner over 
Winter Park.” Id. at 1087-1088.

The FCC’s Review Board reversed that decision and awarded 
the permit to Rainbow. Pet. App. 64a-93a; see Metro Broad­
casting, Inc., 99 F.C.C.2d 688 (1984). The Board concluded, con­
trary to the ALJ’s findings, that Rainbow was a qualified appli­
cant, and thus proceeded to compare all three applicants. The 
Board determined that Rainbow was not only quantitatively ahead 
of petitioner, but also qualitatively superior because Rainbow 
was entitled to “a substantial preference for minority participa­
tion [in management] by 90% of its stock ownership * * * in con­
trast with [petitioner’s] 19.8% credit [for minority participation].” 
Pet. App. 87a. The Board also gave Rainbow “a solid broadcast 
preference” because one of its principals’ past broadcast experience 
was “much more significant” than that of petitioner’s owners. 
Ibid.

In October 1985, the FCC denied both petitioner’s and Winter 
Park’s applications to review the Board’s decision. Pet. App. 
60a-63a. As a result, the Board’s ruling became the FCC’s final 
administrative decision under 47 U.S.C. 155(c)(3). Petitioner and 
Winter Park filed timely appeals from the Commission’s deci­
sion to the District of Columbia Circuit.4

4 The disposition of those appeals was delayed for several years because of 
events arising out of related proceedings. In August 1985, a panel of the court 
of appeals held that the FCC had exceeded its statutory authority by adopting 
a female preference in comparative license proceedings. Steele v. FCC, 770 
F.2d 1192 (D.C. Cir. 1985). The en banc court of appeals, however, granted 
a petition for rehearing, vacated the panel opinion, and ordered supplemental 
briefing. The court of appeals later granted the FCC’s motion for remand, and 
the Commission initiated a non-adjudicatory inquiry proceeding to consider 
the validity of its female and minority preference policies. See note 1, supra.

As a result of the remand in the Steele case, the court of appeals also remanded 
the record in the instant case to the FCC. Pet. App. 58a-59a. On remand,



5

3. In April 1989, a divided court of appeals affirmed. Pet. 
App. la-46a. The court first determined that the constitutionality 
of the FCC’s minority ownership policy was properly at issue 
because “the Commission found on remand that Rainbow’s 
enhancement for minority ownership was probably dispositive.” 
Id. at 10a; see note 4, supra.5 The majority then concluded that 
the decision in West Michigan Broadcasting Co. v. FCC, 735 F.2d 
601 (D.C. Cir. 1984), cert, denied, 470 U.S. 1027 (1985), squarely 
controlled, and thus that the FCC’s policy “easily passes constitu­
tional muster.” Pet. App. 10a (quoting West Michigan, 735 F.2d 
at 613).

The majority noted that the West Michigan court had upheld 
the FCC’s comparative hearing minority preference policy for 
two principal reasons. First, the policy was not a rigid quota 
system, but rather “a consideration of minority status as but one 
factor in a competitive multi-factor selection system that is de­

the FCC concluded that “deletion of Rainbow’s minority and female preferences 
could reverse the outcome of the case and result in an award to (petitioner].” 
Pet. App. 57a; set Metro Broadcasting, Inc., 2 F.C.C. Red 1474, 1475 (1987). 
The FCC therefore held this case in abeyance pending the outcome of its in­
quiry proceeding reexamining its minority preference policies.

In response to the FCC’s initiation of its inquiry proceeding, however, Con­
gress in 1987 enacted an appropriations rider that prohibited the Commission 
from spending any appropriated funds “to repeal, to retroactively apply changes 
in, or to continue a reexamination o f ’ its minority and female preference 
policies. Pub. L. No. 100-202, 101 Stat. 1329-31 to 1329-32 (1987). Congress 
has since extended the prohibition through fiscal years 1989 and 1990. See Pub. 
L. No. 100-459, 102 Stat. 2216-2217 (1988); Pub. L. No. 101-162, 103 Stat. 
1020-1021 (1989).

In response to the appropriations rider, the FCC closed its inquiry proceeding 
and reinstated its policy of awarding gender and racial preferences in com­
parative license proceedings. See, e.g., Faith Center, Inc., 3 F.C.C. Red 868 
(1988). The FCC then reaffirmed its earlier decision in this case awarding the 
permit to Rainbow and denying petitioner’s competing application. Pet. App. 
48a-51a; see Metro Broadcasting, Inc., 3 F.C.C. Red 866 (1988).

5 The court of appeals declined to address the validity of the FCC’s gender 
preference policy, because the FCC had “determined * * * that the outcome 
of the proceeding would not change even if no consideration were given to Rain­
bow’s five percent female participation.” Pet. App. 10a n.5 (citing 3 F.C.C. 
Red at 867 n. 1 (Pet. App. 49a n. 1)). For that reason, the validity of that policy 
is not before this Court.



6

signed to obtain a diverse mix of broadcasters,” 735 F.2d at 613 
(emphasis in original). Second, in amending 47 U.S.C. 309(i) in 
1982 to authorize the FCC to award minority preferences in lot­
teries, Congress had recognized that the underrepresentation of 
minorities in broadcasting stemmed from racial discrimination, 
and therefore “must be understood to have viewed the sort of 
enhancement used here as a valid remedial measure,” 735 F.2d 
at 613-614. Finally, the majority concluded that City o f  Rich­
mond v. J.A. Croson Co., 109 S. Ct. 706 (1989), did not under­
mine the validity of West Michigan or call into question the FCC’s 
minority preference policy. Pet. App. 12a-13a.

Judge Williams dissented from the court’s constitutional 
holding. Pet. App. 18a-46a. He concluded that this Court’s re­
cent decisions in Croson and Wygant v. Jackson Bd. o f  Educ., 
476 U.S. 267 (1986), “largely undermined” the validity of West 
Michigan and thus the constitutionality of the FCC’s minority 
preference policy as well. Pet. App. 18a. In his view, the FCC’s 
asserted rationale for its policy —promoting diversity in 
programming —cannot survive Croson. See id. at 18a, 19a-30a. 
Judge Williams further concluded that the alternative justifica­
tion of remedying prior discrimination could not be relied upon, 
because it was asserted only by Rainbow — not the FCC — and in 
any event might not meet the constitutional standards articulated 
in Wygant and Croson. See id. at 30a-45a.6

SUMMARY OF ARGUMENT

I. The FCC’s policy classifies on the basis of race and is 
therefore constitutionally suspect. In City o f  Richmond v. J.A. 
Croson Co., 109 S. Ct. 706 (1989), five Members of the Court 
concluded that a state or local government’s use of a racial 
classification is subject to “strict scrutiny,” that is, the racial 
classification must be “narrowly tailored” to achieve a “compelling 
governmental interest.” In our view, a racial classification

6 The court of appeals later denied petitions for rehearing, together with sug­
gestions of rehearing en banc, filed by both Winter Park and petitioner. Pet. 
App. 96a-97a, 98a-99a. Judges Silberman, Williams, D.H. Ginsburg, and 
Sentelle dissented from the denial of rehearing en banc. Id. at 98a-99a.



7

adopted by the federal government, no less than a state or local 
government, should be subject to the same exacting standard of 
review. In deciding whether a federal preference program is 
designed to achieve a compelling governmental interest, a deter­
mination made by Congress that there is a need for remedial race­
conscious action should be entitled to significant deference. This 
additional measure of deference is appropriate, however, only 
if Congress itself makes the critical determination that such a pro­
gram is required, and only if this determination has a 
demonstrable basis in fact. And any such racial classification must 
be narrowly tailored to achieve the compelling governmental in­
terest identified by Congress.

II. A. This Court has endorsed only one sufficiently com­
pelling justification for a racial classification: remedying the ef­
fects of identified present or past racial discrimination. That 
justification, however, may not be invoked to uphold the 
preference policy at issue. First, Congress has not specifically 
mandated that the Commission maintain a policy of granting 
preferences to minority applicants in comparative license pro­
ceedings in order to remedy prior discrimination. Second, even 
if Congress could somehow be viewed as having advanced a 
remedial justification, it cannot be said that Congress had suffi­
cient evidence before it of prior discrimination in the broadcasting 
industry —let alone in the awarding of broadcast licenses —to 
justify race-conscious relief. Finally, the FCC, the agency that 
adopted the “policy” Congress has frozen, has consistently taken 
the position that that policy is not designed to remedy prior 
discrimination in the broadcasting industry.

Even if it could be said that the FCC’s preference policy was 
designed to remedy prior identified discrimination, it is plainly 
not “narrowly tailored” to achieve that alleged purpose. Neither 
Congress nor the Commission has considered, much less tried, 
less intrusive race-neutral means to increase minority ownership 
of broadcasting licenses. Moreover, the minority preference policy 
is not aimed at correcting the actual effects of past discrimina­
tion, but instead reflexively confers an added benefit on all who 
possess the requisite skin color or ethnic background.

B. The second asserted justification for the minority 
preference policy is to further diversity of programming. But



8

the Court has never held that such a quest for programming diver­
sity is a sufficiently compelling justification for the government’s 
use of a racial classification, and there is reason to question 
whether that justification —as applied to the public broadcasting 
spectrum —would so qualify. The notion that race or ethnicity 
is a valid proxy for programming choices is precisely the type 
of racial stereotyping that is anathema to basic constitutional 
principles.

Moreover, even if programming diversity could count as a com­
pelling governmental interest, it cannot be said that either Con­
gress or the FCC has established the factual predicate necessary 
to support the use of racial classifications to promote program­
ming diversity. The legislative history shows at most that Con­
gress relied on untested assumptions —about the existence of 
distinct “minority” viewpoints, about whether those viewpoints 
are underserved by today’s broadcasting industry, and about 
whether increasing minority ownership would translate into more 
“minority” programming. Nor does the administrative history of 
the FCC’s policy offer anything to fill “this evidentiary void.” 
Pet. App. 23a (Williams, J., dissenting).

Putting aside the evidentiary difficulties with the “program­
ming diversity” rationale, the FCC’s policy is not “narrowly 
tailored” to accomplish that asserted goal. The policy’s goal — 
diverse programming —is too indeterminate to allow either the 
Commission or any reviewing court to know whether it has ever 
been attained.

ARGUMENT

THE FEDERAL COMMUNICATIONS COMMISSION’S 
POLICY OF AWARDING A QUALITATIVE ENHANCE­
MENT FOR MINORITY OWNERSHIP IN COMPARATIVE 
LICENSE PROCEEDINGS VIOLATES THE EQUAL PRO­
TECTION COMPONENT OF THE FIFTH AMENDMENT

I. Classifications By The Federal Government On The Basis Of 
Race May Be Sustained Only If “Narrowly Tailored” To 
Achieve A “Compelling” Interest

A. The federal policy at issue in this case gives a preference 
to Black, Hispanic, Oriental, Indian, Eskimo, and Aleutian ap­
plicants for broadcast licenses. It plainly classifies on the basis



9

of race and is thus in tension with the fundamental principle em­
bodied in the guarantee of equal protection that skin color and 
ethnic origin are generally inappropriate bases upon which to rest 
official distinctions between people. Brown v. Board o f Educ., 
347 U.S. 483, 493-495 (1954); Bolling v. Sharpe, 347 U.S. 497, 
499-500 (1954); Strauderv. West Virginia, 100 U.S. 303, 307-308 
(1880). Accordingly, under this Court’s equal protection cases, 
the FCC’s preference policy is constitutionally suspect. See, e.g., 
Palmore v. Sidoti, 466 U.S. 429, 432, 433 (1984).

The Court has determined, however, that government action 
based on race, although suspect, is not always unconstitutional. 
A court of equity may, for example, take race into account in 
remedying past acts of intentional, unlawful discrimination on 
the basis of race. See, e.g., United States v. Paradise, 480 U.S. 
149 (1987); Swann v. Charlott e-Mecklenburg Bd. o f  Educ., 402 
U.S. 1 (1971). Similarly, a competent governmental authority may 
in certain circumstances take race into account when necessary 
to remedy prior discrimination. See Wygaht v. Jackson Bd. o f  
Educ., 476 U.S. 267, 277 (1986) (plurality opinion); see also 
Fullilove v. Klutznick, 448 U.S. 448 (1980).

Nevertheless, the Court has made plain that “ ‘[distinctions 
between citizens solely because of their ancestry’ * * * [are] ‘odious 
to a free people whose institutions are founded upon the doc­
trine of equality.’ ” Loving v. Virginia, 388 U.S. 1,11 (1967) 
(quoting Hirabayashi v. United States, 320 U.S. 81, 100 (1943)). 
On that account, the Court has ruled that, to withstand constitu­
tional scrutiny, a law classifying on the basis of race or ethnicity 
ordinarily “must be justified by a compelling governmental in­
terest and must be ‘necessary . . .  to the accomplishment’ ” of 
that purpose. Palmore v. Sidoti, 466 U.S. at 432-433.

B. Last Term, a majority of the Court for the first time 
“reach[ed] consensus on the appropriate constitutional analysis” 
(Paradise, 480 U.S. at 166) to be applied where a state or local 
government adopts a racial or ethnic preference in order to remedy 
past discrimination. In City o f  Richmond v. J.A. Croson Co., 
109 S. Ct. 706 (1989), five Members of the Court concluded that 
this use of race or ethnicity is subject to “strict scrutiny,” that 
is, the racial or ethnic classification must be “narrowly



tailored” to achieve a “compelling governmental interest.” Id. at 
720-721 (opinion of O’Connor, J., joined by Rehnquist, C.J., 
and White and Kennedy, J J .); id. at 735 (Scalia, J., concurring 
in the judgment).

As Justice O’Connor explained in Croson:
Absent searching judicial inquiry into the justification for 

* * * race-based measures, there is simply no way of deter­
mining what classifications are “benign” or “remedial” and 
what classifications are in fact motivated by illegitimate no­
tions of racial inferiority or simple racial politics. Indeed, 
the purpose of strict scrutiny is to “smoke out” illegitimate 
uses of race by assuring that the legislative body is pursu­
ing a goal important enough to warrant use of a highly 
suspect tool.

109 S. Ct. at 721; see also Wygant, 476 U.S. at 273 (plurality 
opinion).

1. The first part of that constitutional analysis focuses on 
the asserted “compelling governmental interest” supporting the 
questioned classification, and involves two related inquiries: iden­
tifying the interest and determining whether it has a sufficient 
basis in fact. A majority of the Court has thus far endorsed only 
one justification for a racial preference that may in appropriate 
circumstances be sufficiently compelling: the government’s in­
terest “in ameliorating, or eliminating where feasible, the disabling 
effects of identified discrimination,” Regents o f  the University 
o f Cal. v. Bakke, 438 U.S. 265, 307 (1978) (opinion of Powell, 
J.). See Croson, 109 S. Ct. at 721-723 (plurality opinion); id. at 
743-745 (Marshall, J., dissenting); Roberts v. United States 
Jaycees, 468 U.S. 609, 624-625 (1984); see also Wygant, 476 U.S. 
at 274 (plurality opinion).7

10

7 In addition, individual Members of the Court have suggested or found that 
the promotion of “racial diversity” may be a sufficiently compelling justifica­
tion for the government to impose race-based measures, at least in the context 
of promoting a diverse student body or a diverse faculty in higher education. 
See Bakke, 438 U.S. at 311-315 (opinion of Powell, J.); Wygant, 476 U.S. at 
306 (Marshall, J., dissenting); id. at 315-317 (Stevens, J., dissenting); see also 
id. at 286 (O’Connor, J., concurring in part and concurring in the judgment).



11

The Court has also established that the asserted compelling 
justification for a racial classification must be based on “suffi­
cient evidence.” Wygant, 476 U.S. at 277 (plurality opinion); id. 
at 286 (O’Connor, J., concurring in part and concurring in the 
judgment); see Croson, 109 S. Ct. at 727 (opinion of the Court). 
In Croson, the Court emphasized that there must be a “strong 
basis in evidence for [the government’s] conclusion that remedial 
action was necessary.” Id. at 724 (opinion of the Court) (inter­
nal quotation marks and citation omitted). In other words, 
“[b]ecause racial characteristics so seldom provide a relevant basis 
for disparate treatment, and because classifications based on race 
are potentially so harmful to the entire body politic, it is especially 
important that the reasons for any such classification be clearly 
identified and unquestionably legitimate.” Ibid, (quoting 
Fullilove, 448 U.S. at 533-535 (Stevens, J., dissenting)).

2. The second part of the constitutional analysis focuses on 
whether a racial classification is “narrowly tailored” to promote 
the compelling governmental interest. In this regard, two fac­
tors were specified by a majority of the Court in Croson and are 
particularly significant: (1) whether alternative race-neutral 
remedies were considered and attempted before resorting to race­
conscious measures, see, e.g., Croson, 109 S. Ct. at 728; Wygant, 
476 U.S. at 283 (plurality opinion); Fullilove, 448 U.S. at 463-467 
(opinion of Burger, C.J.); id. at 511 (Powell, J., concurring), 
and (2) whether the racial preference is limited to those who have 
in fact suffered the disadvantage or discrimination. See, e.g., 
Croson, 109 S. Ct. at 728-729; id. at 734 (Stevens, J., concurring); 
Paradise, 480 U.S. at 171 (plurality opinion); Wygant, 476 U.S. 
at 276 (plurality opinion); Fullilove, 448 U.S. at 480-482, 486-488 
(opinion of Burger, C.J.); id. at 510 (Powell, J., concurring). 
The Court has identified other factors relevant to the “narrow 
tailoring” inquiry as well, such as the flexibility and planned dura­
tion of the remedy, and the effect of the classification on inno­
cent third parties. Wygant, 476 U.S. at 282-283 (plurality opin­
ion); id. at 287 (O’Connor, J., concurring in part and concurr­
ing in the judgment); Fullilove, 448 U.S. at 514-515 (Powell, J., 
concurring). A thorough consideration of these factors is essen­
tial in order to ensure “that the means chosen ‘fit’ [the asserted]



12

compelling goal so closely that there is little or no possibility that 
the motive for the classification wa:s illegitimate racial prejudice 
or stereotype.” Croson, 109 S. Ct. at 721 (plurality opinion).

C. In City o f  Richmond v. J.A. Croson Co., supra, the Court 
had no occasion to determine the standard of review applicable 
to cases challenging racial preference programs adopted by the 
federal government—a threshold issue in this case. And although 
in Fullilove v. Klutznick, supra, the Court upheld a federal 
minority business enterprise preference program against a facial 
constitutional challenge, three separate opinions supported that 
judgment —none of which commanded more than three votes — 
and thus the Court did not resolve the preliminary question of 
the appropriate standard of review. Compare 448 U.S. at 453-495 
(opinion of Burger, C.J., joined by White and Powell, JJ.); with 
id. at 495-517 (Powell, J., concurring); and id. at 517-522 (Mar­
shall, J., joined by Brennan and Blackmun, JJ., concurring in 
the judgment).

In our view, racial classifications adopted by the federal govern­
ment must also withstand the “strict scrutiny” applied to those 
adopted by state and local governments. Thus, federal minority 
preference programs, no less than state and local programs, must 
serve a compelling government interest and be narrowly tailored 
to achieve that interest. In applying this standard, however, we 
believe that courts should give greater deference to a determina­
tion by Congress that there is a compelling need for remedial ac­
tion than would be accorded a similar determination by a state 
or local governmental body.

1. Although the Equal Protection Clause by its terms applies 
only to the States and not to the federal government, it is settled 
by the decisions of this Court that equal protection analysis under 
the Fifth Amendment is generally the same as that under the Four­
teenth Amendment. Buckley v. Valeo, 424 U.S. 1, 93 (1976); 
Weinberger v. Wiesenfeld, 420 U.S. 636, 638 n.2 (1975); Johnson 
v. Robison, 415 U.S. 361, 364-365 n.4 (1974). To be sure, the 
two protections are not coextensive for all purposes. See Hamp­
ton v. Mow Sun Wong, 426 U.S. 88, 100 (1976). But this Court 
has never suggested that the two Clauses supply different degrees 
of protection to individuals who have been disadvantaged



13

by official government action based on their race. See Bolling 
v. Sharpe, 347 U.S. at 499-500. To the contrary, the understand­
ing that all racial classifications are suspect and must be subjected 
“to the most rigid scrutiny” was first articulated in a case involv­
ing the federal government, Korematsu v. United States, 323 U.S. 
214, 216 (1944), and the Court has specifically reaffirmed in the 
context of minority preferences that “the reach of the equal pro­
tection guarantee of the Fifth Amendment is coextensive with 
that of the Fourteenth.” Paradise, 480 U.S. at 166 n.16 (plurali­
ty opinion); id. at 196 (O’Connor, J., joined by Rehnquist, C.J., 
and Scalia, J., dissenting). Indeed, from the point of view of an 
individual who has been penalized because of his race, it mat­
ters little whether the racial classification is sponsored by the 
federal government or by some other governmental entity. Ac­
cordingly, for the same reasons that Croson concluded that 
preferential racial classifications must be subject to strict scrutiny 
under the Fourteenth Amendment, we believe that such classifica­
tions must be subject to the same exacting standard of review 
under the Fifth Amendment.

At the same time, this Court’s decisions in Fullilove and Croson 
suggest that there are important differences between the Con­
gress and other governmental bodies in terms of their power to 
rectify prior discrimination. Congress, unlike state and local 
legislative bodies, is a national representative body. It may 
legislate only with the approval of both Houses — selected by con­
stitutional design on different representational bases— and the 
concurrence of the President, who is “elected by all the people.” 
Myers v. United States, 272 U.S. 52, 123 (1926). Thus, it may 
fairly be said that Congress is more likely than other, more 
parochial bodies to exercise its powers in ways that take into ac­
count the interests of all citizens. See generally The Federalist 
No. 10, at 77 (J. Madison) (C. Rossiter ed. 1961).

In addition, Section 5 of the Fourteenth Amendment specifical­
ly empowers Congress “to enforce, by appropriate legislation,” 
the guarantee of equal protection set forth in Section 1 of that 
Amendment. When Congress exercises its “unique remedial 
powers” under the Fourteenth Amendment, Croson, 109 S. Ct. 
at 718 (opinion of O’Connor, J.), its identification of a compelling



14

need to assist the States in overcoming discrimination in a par­
ticular industry or segment of the economy should be accorded 
greater deference than a similar finding by a state or local 
legislative body. See Croson, 109 S. Ct. at 718-719 (opinion of 
O’Connor, J.); Fullilove, 448 U.S. at 472-480 (opinion of Burger, 
C.J.); id. at 499-506 (Powell, J., concurring). As Justice O’Connor 
concluded in Croson, 109 S. Ct. at 719, the Section 5 power “may 
at times also include the power to define situations which Con­
gress determines threaten principles of equality and to adopt pro­
phylactic rules to deal with those situations.” See also Katzen- 
bach v. Morgan, 384 U.S. 641, 651 (1966).

2. Although Congress has special powers to enforce the 
guarantee of equal protection, it is also of course subject to that 
guarantee. Thus, neither the structural guarantees of the Con­
stitution, nor the express grant of “unique remedial powers” under 
Section 5 of the Fourteenth Amendment, can eliminate the need 
for careful judicial scrutiny of any program adopted by the federal 
government that classifies individuals by race. Accordingly, there 
remain important limitations on Congress’s power to adopt racial 
preferences that have direct relevance in this case.

First, the reasons identified by the Court for giving greater 
deference to a congressional determination of a compelling need 
for a racial classification apply uniquely to Congress, not to other 
components of the federal government. Thus, neither Fullilove 
nor Croson stand for the proposition that a federal administrative 
agency, acting under a general grant of authority to regulate a 
particular industry in the public interest, should be entitled to 
any special deference if it makes a finding of prior discrimina­
tion within that industry, or identifies other potentially compelling 
governmental interests that might support the use of racial 
classifications. Cf. NAACP  v. FPC, 425 U.S. 662 (1976). Con­
gress may of course rely “on the administrative agency to flesh 
out [the] skeleton, pursuant to delegated rulemaking authority” 
(Fullilove, 448 U.S. at 468 (opinion of Burger, C.J.)); but, given 
the suspect nature of any program based on racial classifications, 
Congress itself must make the “critical determinations.” Ibid. Cf. 
Hampton v. Mow Sun Wong, 426 U.S. 88 (1976). And since



15

Congress acts only by enacting legislation, this should ordinari­
ly mean that Congress must make its intention to require the use 
of a remedial racial classification “unmistakably clear in the 
language of the statute.” Dellmuth v. Muth, 109 S. Ct. 2397, 2400 
(1989) (citation omitted).

Second, the Court’s decisions also indicate that a determina­
tion by Congress that there is a compelling need for racial 
preferences may not be made in a vacuum. Chief Justice Burger 
concluded that the minority preference program at issue in 
Fullilove was within Congress’s power only upon finding, after 
an extended review of the legislative background, that “Congress 
had abundant evidence from which it could conclude that minori­
ty businesses have been denied effective participation in public 
contracting opportunities by procurement practices that 
perpetuated the effects of prior discrimination.” 448 U.S. at 
477-478. Justice Powell similarly concluded that Congress must 
have “made findings adequate to support its determination that 
minority contractors have suffered extensive discrimination.” Id. 
at 502. Ordinarily, of course, a reviewing court will not demand 
that Congress have a factual basis in support of whatever legisla­
tion it enacts. See Vance v. Bradley, 440 U.S. 93, 111 (1979). 
But as the Court has stated in an analogous context, “[w]hen the 
Federal Government asserts an overriding national interest as 
justification for a discriminatory rule which would violate the 
Equal Protection Clause if adopted by a State, due process re­
quires that there be a legitimate basis for presuming that the rule 
was actually intended to serve that interest.” Hampton v. Mow- 
Sun Wong, 426 U.S. at 103.

Third, while significant deference should be given to a con­
gressional determination that there is a compelling need for a 
remedial racial preference, a similar degree of deference is not 
appropriate in deciding whether the particular remedy chosen by 
Congress is “narrowly tailored” to achieve that compelling in­
terest. As Justice Powell has observed, Congress’s “special at­
tribute 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.” Fullilove, 448 U.S. at 502-503 (concurring 
opinion). Congress may thus be said to have special competence



16

to determine whether particular sectors of the national economy 
have been historically afflicted by discrimination, and to assess 
the continuing relevance of this discrimination in the present day. 
But Congress does not enjoy a similar advantage in ensuring that 
remedies adopted for rectifying past wrongs are formulated in 
such a way as to minimize the intrusion upon individual rights. 
Cf. Katzenbach v. Morgan, 384 U.S. at 668-670 (Harlan, J., 
dissenting).

As Chief Justice Burger observed in Fullilove, it is important 
that there be a “careful judicial evaluation to assure that any con­
gressional program that employs racial or ethnic criteria to ac­
complish the objective of remedying the present effects of past 
discrimination is narrowly tailored to the achievement of that 
goal.” 448 U.S. at 480. Accordingly, in reviewing the minority 
set-aside in that case, he took into account Congress’s considera­
tion of alternative race-neutral means and the actual flexibility 
and duration of the measure adopted, stressing the program’s 
limitation to correcting the actual effects of discrimination. Id. 
at 463-476, 480-482, 487-488.8 Likewise, Justice Powell careful­
ly reviewed the congressional program in light of factors similar 
to those identified by the Chief Justice. Id. at 510-515. The 
understanding that any racial classification adopted by Congress 
must be “narrowly tailored” to achieve a valid remedial purpose 
is reinforced by opinions of individual Members of the Court 
in Croson. Justice O’Connor, joined by the Chief Justice and 
Justice White, expressly recognized that the “fine tuning” of the 
minority set-aside in Fullilove, see note 8, supra, was a constitu­
tional prerequisite. See 109 S. Ct. at 718. And Justices Stevens,

8 Chief Justice Burger emphasized, for example, that the minority set-aside 
provision “cannot pass muster unless * * * it provides a reasonable assurance 
that application of racial or ethnic criteria will be limited to accomplishing the 
remedial objectives of Congress and that misapplications of the program will 
be promptly and adequately remedied administratively.” Fullilove, 448 U.S. 
at 487. He then explained that the program’s racial presumption “may be re­
butted,” ibid., that there was available a “complaint procedure * * * for repor­
ting ‘unjust participation by an enterprise * * * in the * * * program,’ ” id. at 
488, and that no minority business enterprise may “exploit the remedial aspects 
of the program by charging an unreasonable price, i.e., a price not attributable 
to the present effects of past discrimination,” ibid.



17

Kennedy, and Scalia also acknowledged in separate opinions that 
such tailoring of a racial classification to the asserted remedial 
purpose was constitutionally essential. See id. at 730 n.l (Stevens, 
J., concurring in part and concurring in the judgment); id. at 
734 (Kennedy, J., concurring in part and concurring in the judg­
ment); id. at 735-739 (Scalia, J., concurring in the judgment).9

3. In sum, a racial classification adopted by the federal 
government, no less than a state or local government, should be 
subject to an exacting standard of review. Like any racial 
classification, a federal preference program must be designed to 
achieve a compelling governmental interest. In deciding whether 
such an interest exists, a determination made by Congress that 
there is a need for remedial race-conscious action is entitled to 
significant deference. But this additional measure of deference 
is appropriate only if Congress itself makes the critical determina­
tion that such a program is required, and only if this determina­
tion has an adequate basis in fact. And any such racial classifica­
tion must be narrowly tailored to achieve the compelling govern­
mental interest identified by Congress.

II. The Federal Communications Commission’s Policy Of 
Awarding A Qualitative Enhancement For Minority 
Ownership In Comparative License Proceedings Is Not 
“Narrowly Tailored” To Achieve A “Compelling” Interest

The question for decision in this case, therefore, has two com­
ponents: first, whether any “compelling” governmental interest

9 Analogous support for this conclusion is also supplied by the Court’s deci­
sions assessing the constitutionality of gender classifications in federal statutes. 
The Court has always required the same degree of “fit” between a gender 
classification and the governmental interest asserted in support of that classifica­
tion, whether the statute was enacted by Congress or by one of the States. 
Rostker v. Goldberg, 453 U.S. 57, 69-70 (1981). Moreover, the Court has ap­
plied the same exacting standard of review to federal gender classifications even 
when the discrimination is directed against men rather than women, and even 
when a remedial objective has been asserted in support of the differential treat­
ment. See Califano v. Goldfarb, 430 U.S. 199, 210-212 (1977) (plurality opin­
ion); Weinberger v. Wiesenfeld, 420 U.S. 636, 642-645 (1975); Frontiero v. 
Richardson, 411 U.S. 677, 682-688 (1973) (plurality opinion). These authorities 
suggest that the mere invocation of a “remedial” justification for a racial 
classification should not result in any relaxation of the requirement that such 
classifications be “narrowly tailored.”



18

may be found to justify the FCC’s policy of awarding preferences 
in comparative license proceedings on the basis of race or ethnic 
origin; and second, whether that policy is “narrowly tailored” 
to achieve an identified compelling governmental purpose. The 
Commission’s policy fails both tests.

A. 1. So far, this Court has endorsed only one sufficiently 
compelling justification for a racial classification, namely, 
remedying the effects of identified present or past racial 
discrimination. See p. 10, supra. Although the majority below 
relied upon this justification in upholding the Commission’s policy 
(Pet. App. 10a-l la), we do not believe that asserted interest may 
be invoked here for several reasons.

a. Congress has not specifically mandated that the Commis­
sion maintain a policy of granting preferences to minority ap­
plicants in comparative license proceedings in order to remedy 
prior discrimination. Thus, it cannot be said that Congress has, 
through appropriate statutory language, made an authoritative 
determination that there is a compelling need to rectify the ef­
fects of discrimination in the broadcasting industry. See pp. 14-15, 
supra.'0 10

10 We note that even if Congress had legislated with the requisite specificity, 
it would be questionable whether such legislation could be characterized as an 
exercise of Congress’s powers under Section 5 of the Fourteenth Amendment. 
If Congress found that the FCC had maintained discriminatory policies in 
awarding broadcast licenses, the resulting inequalities would be a product of 
unlawful federal action remediable under the Fifth Amendment, rather than 
unlawful state action subject to Sections 1 and 5 of the Fourteenth Amend­
ment. Moreover, given that the broadcasting industry has been pervasively 
regulated by the FCC since 1934 (and by the Federal Radio Commission before 
that under the Radio Act of 1927, see Act of Feb. 23, 1927, ch. 169, 44 Stat. 
1162), it is difficult to imagine what unlawful action taken by the States might 
give rise to inequalities in the broadcasting industry, except for the most general 
“societal discrimination.” See pp. 21-22, infra. Section 5 of the Fourteenth 
Amendment, however, gives Congress power to legislate only with respect to 
Section 1 of that Amendment, governing state as opposed to federal action.

This case therefore differs from Fullilove, where Congress could be said to 
be acting under Section 5 to rectify past discrimination in the awarding of public 
works contracts by the States. In any event, the Court need not reach the broader 
question whether Congress would have the power to adopt remedial race­
conscious legislation for the broadcasting industry under Section 5 of the



19

The only congressional action directly relevant to this program 
is the enactment of three successive appropriations riders, each 
of which provides that the FCC is not to spend appropriated funds 
during a given fiscal year “to repeal, to retroactively apply changes 
in, or to continue a reexamination of [the Commission’s minori­
ty preference policy].” 101 Stat. 1329-31 to 1029-32; 102 Stat. 
2216-2217; 103 Stat. 1020-1021. The appropriations riders, by 
their terms, do not purport to mandate the use of a particular 
racial classification; nor do they charge the Commission with any 
remedial duties or make any findings of prior discrimination af­
fecting the broadcasting industry. At most, they direct that the 
status quo be maintained with respect to the Commission’s 
policies —policies that have always been grounded in the “pro­
gramming diversity” rationale, rather than in any finding of prior 
discrimination (see p. 22, infra). That call for “a kind of mental 
standstill,” as Judge Williams observed, Pet. App. 35a, scarcely 
resembles a legislative directive requiring the use of a racial 
classification in comparative license proceedings. See Hampton 
v. Mow Sun Wong, 426 U.S. at 114-116; see also TVA v. Hill, 
437 U.S. 153, 190-191 (1978).11

The sparse legislative history of the appropriations riders con­
firms that Congress’s delphic action cannot be regarded as an 
effort to remedy identified past or present discrimination. For 
example, the Senate Appropriations Committee, which was re­

Fourteenth Amendment (or for that matter, under Section 2 of the Thirteenth 
Amendment, see Jones v. Alfred H. Mayer & Co., 392 U.S. 409 (1968)), since 
in our view it is clear that Congress has not attempted to do so with the re­
quisite specificity or with the kind of supporting evidence required by Fullilove.

11 In 1982, Congress amended the Communications Act to authorize the FCC 
to award licenses under a random selection system, and specifically directed 
the Commission, in creating any such lottery procedure, to grant “an additional 
significant preference * * * to any applicant controlled by a member or members 
of a minority group.” 47 U.S.C. 309(i)(3)(A). By its terms, however, that pro­
vision does not purport to require the Commission to grant a similar preference 
in comparative proceedings, and the pertinent legislative history contains no 
suggestion that Congress so intended. See, e.g., Fl.R. Conf. Rep. No. 765, 97th 
Cong., 2d Sess. 43-44 (1982); H.R. Conf. Rep. No. 208, 97th Cong., 1st Sess. 
897 (1981).



20

sponsible for the language in the 1987 rider, stated that the Com­
mission’s reexamination of its preference policy was “unwar­
ranted,” in part because

[t]he Congress has expressed its support for [that policy] 
in the past and has found that promoting diversity of owner­
ship of broadcast properties satisfies important public policy 
goals. Diversity of ownership results in diversity of program­
ming and improved service to minority * * * audiences.

S. Rep. No. 182, 100th Cong., 1st Sess. 76 (1987); see also S. 
Rep. No. 388, 100th Cong., 2d Sess. 79 (1988). Indeed, the only 
Committee Report that mentions even in passing a possible 
remedial justification for the Commission’s policies is that 
associated with a different minority preference policy-the 
preference applicable to a lottery system. See 47 U.S.C. 
309(i)(3)(A) and notes 3 and 11, supra. In these circumstances, 
the legislative record does not suggest, let alone confirm, that 
Congress made any “considered decision” (Fullilove, 448 U.S. 
at 473) that minority preferences are necessary in comparative 
hearings to remedy the effects of racial discrimination in the 
broadcasting industry.

b. Even if Congress could somehow be viewed as having 
adopted a remedial justification, it cannot be said that Congress 
had sufficient evidence before it of prior discrimination in the 
broadcasting industry to justify race-conscious relief. See, e.g., 
Croson, 109 S. Ct. at 727 (opinion of the Court); Wygant, 476 
U.S. at 277 (plurality opinion); Fullilove, 448 U.S. at 533-535 
(Stevens, J., dissenting). To the contrary, the sparse legislative 
record associated with the appropriations riders plainly shows 
that Congress had no basis -  certainly no articulated basis-fo r 
finding that either the Commission or the broadcasting industry 
in general has engaged in racially discriminatory practices that 
hampered minorities’ ability to own broadcasting licenses. See, 
e.g., Pet. App. 38a-39a. Nor does the bare mention of a possi­
ble remedial justification in the legislative history of the lottery 
program constitute the kind of factual predicate necessary to sus­
tain the use of a racial classification. Compare Fullilove, 448 U.S. 
at 463-467 (opinion of Burger, C.J.) (relying on extensive 
legislative history of related legislation).



21

Indeed, as far as we are aware, the only argument that could 
be advanced in support of the Commission’s preference policies 
as a remedial measure would be that, because of prior societal 
discrimination, minority groups have fewer financial resources 
than nonminorities, and thus have not been able to purchase the 
radio and television stations that regularly become available on 
the resale market.12 But this Court has made clear in the context 
of state and local preference policies that “societal discrimina­
tion,” standing alone, cannot justify a racial classification. See 
Croson, 109 S. Ct. at 723 (plurality opinion). As Justice Powell 
observed in Wygant:

Societal discrimination, without more, is too amorphous 
a basis for imposing a racially classified remedy. * * * No 
one doubts that there has been serious racial discrimination 
in this country. But as the basis for imposing discriminatory 
legal remedies that work against innocent people, societal 
discrimination is insufficient and overexpansive.

476 U.S. at 276 (plurality opinion); accord Bakke, 438 U.S. at 
307 (opinion of Powell, J.).

While Congress can no doubt legislate more broadly than state 
and local bodies, this Court has never held that generalized 
societal discrimination, by itself, is sufficient to sustain a federal 
minority preference program. In sustaining a federal minority 
set-aside program for federally funded state public works pro­
jects in Fullilove, the Court was careful to note that Congress 
had before it evidence that prior discrimination had infected the 
construction industry, and therefore justified the exercise

12 Large numbers of radio and television stations are transferred each year 
in private transactions that appear to be routinely approved by the FCC. In­
deed, based on the FCC’s estimate that approximately one-half of all transfer 
applications approved each year reflect station sales (as opposed to reorganiza­
tions), it would appear that approximately 9% of all broadcast stations 
(representing roughly 1000 radio stations and 250 television stations) are sold 
in any given year (based on averages over the past 10 years). See Broadcast/Mass 
Media Application Statistics, FCC Ann. Rep. (Fiscal Years 1979-1988). Ac­
cordingly, it is reasonable to assume that the principal impediment to increased 
minority ownership of broadcasting outlets in today’s market is the fact that 
members of minority groups have fewer of the financial resources needed to 
acquire and operate radio and television stations.



22

of Congress’s remedial powers. See 448 U.S. at 456-467 (opinion 
of Burger, C.J.); id. at 502-506 (Powell, J., concurring); id. at 
520 (Marshall, J., concurring in the judgment). Here, there can 
be no claim that Congress had before it evidence suggesting that 
minorities have been denied any opportunity to acquire broad­
casting facilities because of official or private acts of discrimina­
tion. This is rather a case like Croson, in which “[tjhere is nothing 
approaching a prima facie case of constitutional or statutory viola­
tion by anyone” in the broadcasting industry. 109 S. Ct. at 724 
(opinion of the Court).

c. Finally, the FCC, the agency that promulgated the “policy” 
Congress has frozen, has consistently taken the position that that 
policy is not designed to remedy prior discrimination in the broad­
casting industry. In this case, for example, the Commission has 
made plain that its “goal in implementing the preference policy 
* * * has not been to remedy prior discrimination against 
minorities or to provide remedial benefits.” FCC C.A. Br. 30; 
see Pet. App. 11a n.6, 33a. That position stems from the fact 
that “[tjhere has never been a finding, nor * * * even an allega­
tion, that the FCC engaged in prior discrimination against racial 
minorities * * * in its licensing process.” Id. at 33a. According­
ly, under settled principles of administrative law,, the racial 
classification at issue here may not be sustained on the basis of 
any agency finding of the need for remedial action. See, e.g., 
SEC v. Chenery Corp., 318 U.S. 80, 88 (1943).

2. Even if it could be said that the FCC’s preference policy 
was adopted to remedy prior identified discrimination, it is plainly 
not “narrowly tailored” to achieve that alleged purpose. First, 
neither Congress nor the Commission has considered, much less 
tried, less intrusive race-neutral means to increase minority owner­
ship of broadcasting licenses. See, e.g., Croson, 109 S. Ct. at 
728; Fullilove, 448 U.S. at 463-467 (opinion of Burger, C.J.); 
id. at 511 (Powell, J., concurring). Before 1978, the Commis­
sion had adopted various race-neutral policies designed to increase 
diversity of programming, see 1978 Policy Statement, 68 F.C.C. 
2d at 980, 981; but it has never undertaken any race-neutral steps 
to augment diversity of ownership, either prior to adopting its 
preference policies or since then. Moreover, the minority pref­



23

erence policy is not aimed at correcting the actual effects of past 
discrimination. See, e.g., Croson, 109 S. Ct. at 728-729; id. at 
734 (Stevens, J., concurring in part and concurring in the judg­
ment); Paradise, 480 U.S. at 171 (plurality opinion); Fullilove, 
448 U.S. at 480-482, 486-488 (opinion of Burger, C.J.); id. at 
510 (Powell, J., concurring). In particular, the policy, as applied, 
does not permit an inquiry to determine whether any particular 
minority applicant was in fact not disadvantaged by past 
discrimination. As Judge Williams observed, “it is hard to see 
how a program can be ‘narrowly tailored’ as a remedy for societal 
discrimination if competitors have no opportunity to show that 
individual beneficiaries have suffered no impairment of their 
license-securing ability attributable to that discrimination.” Pet. 
App. 43a-44a.

To be sure, as the court of appeals pointed out, “minority 
ownership is simply one factor among several that the Commis­
sion takes into account in the award of broadcast licenses,” Pet. 
App. 14a, and the Commission will not even consider that fac­
tor where an applicant has a clear quantitative advantage over 
its rivals. See p. 2, supra. But the fact that explicit consideration 
of race or ethnic background may not be dispositive in every case 
does not mean that such consideration is “narrowly tailored” in 
a constitutionally relevant sense. For example, it does not mean 
that the policy will be applied only to those who are truly disad­
vantaged or only when it will not injure innocent third parties. 
As this case suggests, minority ownership can be the determinative 
factor in a comparative license proceeding, whether or not a 
minority applicant can show he has been disadvantaged. Pet. 
App. 10a. And as Judge Williams noted, the FCC’s policy can 
clearly injure third parties; indeed, “Rainbow’s victory, in which 
the minority preference was dispositive, deprived the other com­
petitors of their only chance for a new license for the foreseeable 
future.” Id. at 44a. Thus, the fact that the Commission’s 
preferences do not affect every case at most limits the class of 
those with standing to challenge the policy to those actually in­
jured by its application to them.

B. 1. The second asserted justification for the minority 
preference policy —and the one on which the Commission prin-



24

cipally relies —is to further diversity of programming. See, e.g., 
Pet. App. 11a n.6, 19a. This asserted justification is clearly dif­
ferent from any of the rationales previously considered by this 
Court in support of minority preference programs, including the 
interest in promoting “racial diversity” in higher education, which 
Justice Powell found to be a compelling governmental interest 
in his opinion in Bakke. See 438 U.S. at 311-315; see also Wygant, 
476 U.S. at 306 (Marshall, J., dissenting); id . at 315-317 (Stevens, 
J., dissenting). No issue is presented here as to whether promoting 
“racial diversity” may ever constitute a compelling governmen­
tal interest;13 the only question is whether racial preferences may 
be adopted because of their asserted instrumental value in pro­
moting an entirely different type of “diversity” —diversity in 
programming.

a. There is reason to question whether that justification, as 
applied to the public broadcast spectrum, may ever qualify as 
a compelling governmental interest. This Court has long recog­
nized that “the widest possible dissemination of information from 
diverse * * * sources is essential to the welfare of the public” and 
is plainly a legitimate governmental interest. Associated Press v. 
United States, 326 U.S. 1, 20 (1945); see, e.g., FCCv. National 
Citizens Comm, fo r  Broadcasting, 436 U.S. 775, 795 (1978). 
Nevertheless, the Court has never held that such a quest for 
diverse information is a sufficiently compelling justification for 
the government’s use of a racial classification. Cf. Miami Herald 
Publishing Co. v. Tornillo, 418 U.S. 241 (1974). “Programming 
diversity,” and the related notions of “minority” or “nonminori­
ty” programming, are “elusive concepts, not easily defined let

13 The FCC has not suggested that it may seek to promote diverse owner­
ship as an end in itself. As Justice Powell stated, “[pjreferring members of any 
one group for no reason other than race or ethnic origin is discrimination for 
its own sake. This the Constitution forbids.” Bakke, 438 U.S. at 307; accord 
Croson, 109 S. Ct. at 721 (plurality opinion); id. at 730-734 (Stevens, J., con­
curring in part and concurring in the judgment); id. at 735, 739 (Scalia, J., 
concurring in the judgment). The FCC’s programming diversity rationale is 
more akin to the argument that preferences should be given to minority ap­
plicants to medical schools in order to ensure a sufficient number of doctors 
willing to serve minority communities—a justification Justice Powell specifically 
rejected as unwarranted by the evidence in Bakke. See 438 U.S. at 310-311.



25

alone measured without making qualitative judgments objec­
tionable on both policy and First Amendment grounds.” National 
Citizens Comm, fo r  Broadcasting, 436 U.S. at 796-797. 
Moreover, the programming diversity rationale appears to require 
official identification and labelling of, among other things, 
“Black,” “Hispanic,” and “Aleutian” programming and view­
points, and indulging in the assumption that we can tell how 
someone will think and act based solely on the color of his skin. 
This type of racial stereotyping is anathema to fundamental con­
stitutional principles. E.g., Croson, 109 S. Ct. at 721 (plurality 
opinion); id. at 730-734 (Stevens, J., concurring in part and con­
curring in the judgment); id. at 735, 739 (Scalia, J., concurring 
in the judgment); Bakke, 438 U.S. at 307 (opinion of Powell, 
J.); Wygant, 476 U.S. at 274-276 (plurality opinion); Loving v. 
Virginia, 388 U.S. at 10-11.

b. Even if programming diversity might in theory qualify as 
a compelling governmental interest, the next question would be 
whether Congress itself has adopted this justification.14 Here 
again, Congress has never enacted a statute expressly directing 
or authorizing the Commission to prefer minorities in comparative 
license proceedings in order to increase programming diversity. 
It has only directed the Commission to preserve the status quo 
with respect to an FCC policy originally justified on such 
grounds. See pp. 19-20, supra. To be sure, the legislative history 
of the various appropriations riders suggests that individual 
members of Congress approved of that rationale, see, e.g.,

14 Questions about whether Congress could be said to have the power to adopt 
a minority preference policy for the broadcasting industry under Section 5 of 
the Fourteenth Amendment (see note 10, supra) are compounded when the ra­
tionale for such a policy is based on the need to enhance programming diversi­
ty, rather than to remedy past discrimination. The Section 5 power extends 
only to the enforcement of Section l ’s guarantee that “No State shall * * * deny 
to any person within its jurisdiction the equal protection of the laws.” The goal 
of programming diversity, however, is not derived from the Equal Protection 
Clause, but rather from the policies of the Federal Communications Act. Thus, 
although the Court need not reach the question, we think it very doubtful that 
a congressionally mandated program of minority preferences designed to 
enhance the diversity of programming could be justified as an exercise of Con­
gress’s power under Section 5.



26

S. Rep. No. 182, 100th Cong., 1st Sess. 76 (1987); 134 Cong. 
Rec. S10,021 (daily ed. July 27, 1988) (statement of Sen. Holl- 
ings); 133 Cong. Rec. S14,395 (daily ed. Oct. 15, 1987) (state­
ment of Sen. Lautenberg). But Congress may work its will only 
by enacting legislation, cf. INS  v. Chadha, 462 U.S. 919, 952 
(1983), and general statements contained in the legislative 
history —which were not voted on by the Congress, perhaps not 
even seen by many of its members, and certainly not presented 
to the President —cannot substitute for an express statutory pro­
vision mandating the use of preferences. See pp. 14-15, supra; 
cf. Tafflin v. Levitt, No. 88-1650 (Jan. 22, 1990), slip op. 3-4 
(Scalia, J., concurring).

c. In any event, even if it could be said that Congress had 
expressly directed the Commission to award minority preferences 
in order to enhance programming diversity, it cannot be said that 
Congress had an adequate basis in fact to support the imposi­
tion of such an inherently suspect racial classification. As Judge 
Williams observed (see Pet. App. 22a), in order to demonstrate 
the need for racial preferences on this score, it would be necessary 
to show three things: (1) that different racial or ethnic groups 
have distinctive listening or viewing tastes; (2) that one or more 
of these distinctive racial or ethnic tastes are being undersupplied 
by today’s broadcasting industry; and (3) that increasing the 
percentage of minority owners would overcome the shortage of 
programming that serves these distinctive tastes. To the extent 
that Congress even perceived the need to resolve these questions, 
however, it merely assumed the answers. There is scattered anec­
dotal evidence offered by various individuals and interest groups 
in congressional hearings that might support one or more of these 
propositions.15 But the pertinent dimensions of the problem

15 See Minority Ownership o f  Broadcast Stations: Hearing Before the Sub- 
comm, on Communications o f  the Senate Comm, on Commerce, Science, and 
Transportation, 101st Cong., 1st Sess. (1989) [1989Hearing]-, Minority-Owned 
Broadcast Stations: Hearing on H.R. 5373 Before the Subcomm. on Telecom­
munications, Consumer Protection, and Finance o f  the House Comm, on 
Energy and Commerce, 99th Cong., 2d Sess. (1986); Minority Participation 
in the Media: Hearings Before the Subcomm. on Telecommunications, Con­
sumer Protection, and Finance o f  the House Comm, on Energy and Commerce, 
98th Cong., 1st Sess. (1983); Parity fo r  Minorities in the Media: Hear­



27

remained “unmeasured, unexplored, or unexplained” by Congress. 
Croson, 109 S.Ct. at 735 (Kennedy, J., concurring in part and 
concurring in the judgment). Where, as here, Congress has not 
affirmatively enacted legislation based on any finding that race 
is a reliable proxy for programming choices, such an unfocused 
gathering of information is an inadequate basis for invoking an 
otherwise suspect racial classification.16

Nor does the administrative history of the FCC policy offer 
anything to fill “this evidentiary void.” Pet. App. 23a (Williams, 
J., dissenting). The Commission initially adopted its policy not 
after any careful study of the need for additional programming 
diversity and the relationship between ownership and program­
ming, but rather at the direction of the court of appeals for the 
District of Columbia Circuit. See pp. 2-3, supra. The court of 
appeals, in turn, merely assumed that there was inadequate 
“minority” programming, and that increased minority ownership 
would rectify this shortcoming. See Garrett, 513 F.2d at 1063.

The administrative record compiled by the Commission, such 
as it is, confirms that the Commission also acted on the basis

ing on H.R. 1155 Before the Subcomm. on Telecommunications, Consumer 
Protection, and Finance o f  the House Comm, on Energy and Commerce, 98th 
Cong., 1st Sess. (1983).

16 In the court of appeals, the Commission suggested that Congress could 
have properly relied on a recent report filed by the Congressional Research 
Service that purports to document a correlation between minority ownership 
and diverse programming. Congressional Research Service, Minority Broad­
cast Station Ownership and Broadcast Programming: Is There A Nexus? (June 
29, 1988); see FCC C.A. Br. 46-47. That report, for the reasons stated by Judge 
Williams (see Pet. App. 23a-29a), is so fundamentally flawed as to deprive it 
of any significance.

In any event, apart from one passing reference to that report in the perti­
nent legislative record, see 134 Cong. Rec. S10,021 (daily ed. July 27, 1988) 
(statement of Sen. Hollings), there are no indications that Congress even con­
sidered, let alone accepted, the tentative findings in the CRS survey in connec­
tion with maintaining the appropriations provision blocking the FCC’s inquiry 
proceeding. Indeed, Senator Inouye, a leading proponent of the Commission’s 
minority preference policies, recently acknowledged that Congress “need[s| to 
demonstrate that minority * * * ownership of broadcast stations does, in fact, 
promote diversity in the views presented on the airwaves.” 1989 Hearing at 2.



28

of untested assumptions.®7 In fact, the Commission has candid­
ly admitted the lack of an evidentiary predicate for the preference 
policy. In 1986, the FCC conceded that no Commission pro­
ceeding establishes as a fact that

the race * * * of an owner necessarily has a direct nexus to 
program content. * * * The substantial deference normal­
ly accorded the Commission’s judgmental and predictive 
determinations cannot justify reliance on suspect classifica­
tions to enhance program diversity in the absence of a clear 
and specific foundation upon which to base its conclusion. 
Here the agency needs a factual basis to support the assumed 
nexus, but none has ever been established.

Brief for FCC on Rehearing En Banc at 27-28, Steele v. FCC, 
770 F.2d 1192 (D.C. Cir. 1985). It was precisely for that reason 
that the Commission initiated its inquiry proceeding in December 
1986. See note 1, supra. Congress, however, terminated that in­
vestigation, see note 4, supra, and thus the Commission has been 
unable to determine whether the asserted purpose of the minori­
ty preference policy adopted over a decade ago has or ever had 
any factual support.17 18

17 For example, the 1978 Policy Statement, 68 F.C.C.2d at 981, quotes the 
Task Force Report. The Task Force Report, in turn, relies on decisions such 
as TV 9 and Garrett for its endorsement of the proposition that increased minori­
ty ownership will promote “greater diversity in the media.” Task Force Report 
at 4; see id. at 4-6.

l8Recent developments in broadcasting undermine the proposition that there 
is a lack of diversity in (or that minority viewpoints are not being served by) 
current programming. In abandoning the “fairness doctrine,” the Commission 
determined intervention was no longer necessary to ensure balanced broadcast 
presentation on matters of public interest because there are now a “sufficient 
number of over-the-air television and radio voices to insure the presentation 
of diverse opinions on issues of public importance.” Report Concerning General 
Fairness Doctrine Obligations o f  Broadcast Licensees, 102 F.C.C.2d 143, 208 
(1985); see Syracuse Peace Council v. FCC, 867 F.2d 654 (D.C. Cir. 1989), 
cert, denied, No. 89-312 (Jan. 8, 1990). The Commission has also recognized 
that those changes in the marketplace

have resulted in [a] * * * rich array of information and entertainment pro­
gramming, and, further, that this phenomenon of increased competition 
driving increased program diversity will continue. These findings demon-



29

2. Putting aside the evidentiary difficulties with the “program­
ming diversity” rationale, that policy is not “narrowly tailored” 
to achieve the asserted goal. The policy’s goal —diverse 
programming —is too indeterminate to allow either the Commis­
sion or any reviewing court to know whether it has ever been 
attained. This Court has made clear that such a feature, which 
renders the preference policy potentially “ageless in [its] reach 
into the past, and timeless in [its] ability to affect the future,” 
Wygatit, 476 U.S. at 276 (plurality opinion), precludes the use 
of a racial classification. See, e.g., Croson, 109 S. Ct. at 723 
(plurality opinion); Paradise, 480 U.S. at 171 (plurality opinion). 
As Judge Williams observed, “[pjlainly there can be no assurance 
of an end to the racial preference if there is no way —except the 
Commission’s conclusory say-so —of ascertaining when the goal 
is reached.” Pet. App. 27a.

*  *  *  *  *

Apart from the substantial doctrinal flaws identified above, 
the Federal Communications Commission’s use of a racial 
classification cannot overcome a more fundamental hurdle —the 
prerequisite of coherence. The Commission’s use of racial 
preferences remains today as much as ever a policy in search of 
a purpose and an adequate supporting record. That policy was 
conceived by a court, Congress has refrained from enacting af­
firmative legislation, and the Commission has been blocked from 
completing the administrative inquiry proceeding it determined 
was necessary to justify its own policy. This confused state of 
affairs now leaves this Court to speculate about the reasons for 
the policy and to piece together an appropriate supporting record. 
Racial classifications, when imposed by the government, must 
at a minimum reflect the deliberate judgment of a competent

strate that in the current environment there is little if any basis to assume 
that racial or gender preferences are essential to the availability of 
minorities’ and women’s viewpoints. Thus, rather than there being a record 
to demonstrate that these preferences are essential, what record is available 
suggests otherwise.

Brief for FCC on Rehearing En Banc at 26-27, Steele v. FCC, supra.



30

authority that such measures are necessary for specific purposes. 
Because that predicate is plainly absent here, the Commission’s 
policy cannot be sustained.

CONCLUSION

The judgment of the court of appeals should be reversed. 
Respectfully submitted.

February  1990

J o h n  G. Roberts , J r .
Acting Solicitor General*

J am es P . Turner  
Acting Assistant Attorney General

T hom as  W. M errill  
Deputy Solicitor General

Roger  C legg
Deputy Assistant Attorney General 

M ich a el  R. Lazerw itz  
Assistant to the Solicitor General

* The Solicitor General is disqualified in this case.

*  U.S. GOVERNMENT PRINTING OFFICE: 1990-262-203/00749