Subject:  METRO BROADCASTING, INC. v. FCC, Syllabus



 
    NOTE: Where it is feasible, a syllabus (headnote) will be released, as
is being done in connection with this case, at the time the opinion is
issued.  The syllabus constitutes no part of the opinion of the Court but
has been prepared by the Reporter of Decisions for the convenience of the
reader.  See United States v. Detroit Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES


Syllabus



METRO BROADCASTING, INC. v. FEDERAL COMMUNICATIONS COMMISSION et al.

certiorari to the united states court of appeals for the district of
columbia circuit

No. 89-453.  Argued March 28, 1990--Decided June 27, 1990 {1}

These cases consider the constitutionality of two minority preference
policies adopted by the Federal Communications Commission (FCC).  First,
the FCC awards an enhancement for minority ownership and participation in
management, which is weighed together with all other relevant factors, in
comparing mutually exclusive applications for licenses for new radio or
television broadcast stations.  Second, the FCC's so- called "distress
sale" policy allows a radio or television broadcaster whose qualifications
to hold a license have come into question to transfer that license before
the FCC resolves the matter in a noncomparative hearing, but only if the
transferee is a minority enterprise that meets certain requirements.  The
FCC adopted these policies in an attempt to satisfy its obligation under
the Communications Act of 1934 to promote diversification of programming,
taking the position that its past efforts to encourage minority
participation in the broadcast industry had not resulted in sufficient
broadcast diversity, and that this situation was detrimental not only to
the minority audience but to all of the viewing and listening public.
Metro Broadcasting, Inc., the petitioner in No. 89-453, sought review in
the Court of Appeals of an FCC order awarding a new television license to
Rainbow Broadcasting in a com parative proceeding, which action was based
on the ruling that the substantial enhancement granted Rainbow because of
its minority ownership outweighed factors favoring Metro.  The court
remanded the appeal for further consideration in light of the FCC's
separate, ongoing Docket 86-484 inquiry into the validity of its minority
ownership policies.  Prior to completion of that inquiry, however, Congress
enacted the FCC appropriations legislation for fiscal year 1988, which
prohibited the FCC from spending any appropriated funds to examine or
change its minority policies.  Thus, the FCC closed its Docket 86-484
inquiry and reaffirmed its grant of the license to Rainbow, and the Court
of Appeals affirmed.  Shurberg Broadcasting of Hartford, Inc., one of the
respondents in No. 89-700, sought review in the Court of Appeals of an FCC
order approving Faith Center, Inc.'s distress sale of its television
license to Astroline Communications Company Limited Partnership, a minority
enterprise.  Disposition of the appeal was delayed pending resolution of
the Docket 86-484 inquiry by the FCC, which, upon closing that inquiry as
discussed supra, reaffirmed its order allowing the distress sale to
Astroline.  The court then invalidated the distress sale policy, ruling
that it deprived Shurberg, a nonminority applicant for a license in the
relevant market, of its right to equal protection under the Fifth
Amendment.

Held: The FCC policies do not violate equal protection, since they bear the
imprimatur of longstanding congressional support and direction and are
substantially related to the achievement of the important governmental
objective of broadcast diversity.  Pp. 12-48.

    (a) It is of overriding significance in these cases that the minority
ownership programs have been specifically approved--indeed mandated--by
Congress.  In light of that fact, this Court owes appropriate deference to
Congress' judgment, see Fullilove v. Klutznick, 448 U. S. 448, 472-478,
490, 491 (opinion of Burger, C. J.); id., at 500-510, 515-516, n. 14
(Powell, J., concurring); id., at 517-520 (Marshall, J., concurring in
judgment), and need not apply strict scrutiny analysis, see id., at 474
(opinion of Burger, C. J.); id., at 519 (Marshall, J., concurring in
judgment).  Benign race-conscious measures mandated by Congress--even if
those measures are not "remedial" in the sense of being designed to
compensate victims of past governmental or societal discrimination--are
constitutionally permissible to the extent that they serve important
governmental objectives within the power of Congress and are substantially
related to the achievement of those objectives.  Richmond v. J. A. Croson
Co., 489 U. S. 469, distinguished and reconciled.  Pp. 12-14.

    (b) The minority ownership policies serve an important governmental
objective.  Congress and the FCC do not justify the policies strictly as
remedies for victims of demonstrable discrimination in the commu nications
media, but rather have selected them primarily to promote broadcast
diversity.  This Court has long recognized as axiomatic that broadcasting
may be regulated in light of the rights of the viewing and listening
audience, and that the widest possible dissemination of information from
diverse and antagonistic sources is essential to the public welfare.
Associated Press v. United States, 326 U. S. 1, 20.  Safeguarding the
public's right to receive a diversity of views and information over the
airwaves is therefore an integral component of the FCC's mission, serves
important First Amendment values, and is, at the very least, an important
governmental objective that is a sufficient basis for the policies in
question.  Pp. 14-17.

    (c) The minority ownership policies are substantially related to the
achievement of the Government's interest in broadcast diversity.  First,
the FCC's conclusion that there is an empirical nexus between minority
ownership and greater diversity, which is consistent with its longstanding
view that ownership is a prime determinant of the range of programming
available, is a product of its expertise and is entitled to deference.
Second, by means of the recent appropriations legislation and by virtue of
a long history of support for minority participation in the broadcasting
industry, Congress has also made clear its view that the minority ownership
policies advance the goal of diverse programming.  Great weight must be
given to the joint determination of the FCC and Congress.  Pp. 17-27.

    (d) The judgment that there is a link between expanded minority
ownership and broadcast diversity does not rest on impermissible stereo
typing.  Neither Congress nor the FCC assumes that in every case minority
ownership and management will lead to more minority-oriented programming or
to the expression of a discrete "minority viewpoint" on the airwaves.  Nor
do they pretend that all programming that appeals to minorities can be
labeled "minority" or that programming that might be so described does not
appeal to nonminorities.  Rather, they maintain simply that expanded
minority ownership of broadcast outlets will, in the aggregate, result in
greater broadcast diversity.  This judgment is corroborated by a host of
empirical evidence suggesting that an owner's minority status influences
the selection of topics for news coverage and the presentation of editorial
viewpoint, especially on matters of particular concern to minorities, and
has a special impact on the way in which images of minorities are
presented.  In addition, studies show that a minority owner is more likely
to employ minorities in managerial and other important roles where they can
have an impact on station policies.  The FCC's policies are thus a product
of analysis rather than a stereotyped reaction based on habit.  Cf.
Fullilove, supra, at 524, n. 4.  The type of reasoning employed by the FCC
and Congress is not novel, but is utilized in many areas of the law,
including the selection of jury venires on the basis of a fair cross
section, and the reapportionment of electoral districts to preserve
minority voting strength.  Pp. 28-33.

    (e) The minority ownership policies are in other relevant respects
substantially related to the goal of promoting broadcast diversity.  The
FCC adopted and Congress endorsed minority ownership preferences only after
long study, painstaking consideration of all available alternatives, and
the emergence of evidence demonstrating that race-neutral means had not
produced adequate broadcasting diversity.  Moreover, the FCC did not act
precipitately in devising the policies, having undertaken thorough
evaluations in 1960, 1971, and 1978 before adopting them.  Furthermore, the
considered nature of the FCC's judgment in selecting these particular
policies is illustrated by the fact that it has rejected other, more
expansive types of minority preferences--e. g., set- asides of certain
frequencies for minority broadcasters.  In addition, the minority ownership
policies are aimed directly at the barriers that minorities face in
entering the broadcasting industry.  Thus, the FCC assigned a preference to
minority status in the comparative licensing proceeding in order to
compensate for a dearth of minority broadcasting experience.  Similarly,
the distress sale policy addresses the problem of inadequate access to
capital by effectively lowering the sale price of existing stations and the
problem of lack of information regarding license availability by providing
existing licensees with an incentive to seek out minority buyers.  The
policies are also appropriately limited in extent and duration and subject
to reassessment and reevaluation before renewal, since Congress has
manifested its support for them through a series of appropriations acts of
finite duration and has continued to hold hearings on the subject of
minority ownership.  Provisions for administrative and judicial review also
guarantee that the policies are applied correctly in individual cases and
that there will be frequent opportunities to revisit their merits.
Finally, the policies impose only slight burdens on nonminorities.  Award
of a preference contravenes no legitimate, firmly rooted expectation of
competing applicants, since the limited number of frequencies available
means that no one has First Amendment right to a license, and the granting
of licenses requires consideration of public interest factors.  Nor does
the distress sale policy impose an undue burden on nonminorities, since it
may be invoked only with respect to a small fraction of broadcast licenses,
only when the licensee chooses to sell out at a low price rather than risk
a hearing, and only when no competing application has been filed.  It is
not a quota or fixed quantity set-aside, and nonminorities are free to
compete for the vast remainder of other available license opportunities.
Pp. 33-48.

No. 89-453, 277 U. S. App. D. C. 134, 873 F. 2d 347, affirmed and remanded;
No. 89-700, 278 U. S. App. D. C. 24, 876 F. 2d 902, reversed and remanded.

Brennan, J., delivered the opinion of the Court, in which White, Marshall,
Blackmun, and Stevens, JJ., joined.  Stevens, J., filed a concurring
opinion.  O'Connor, J., filed a dissenting opinion, in which Rehnquist, C.
J., and Scalia and Kennedy, JJ., joined.  Kennedy, J., filed a dissenting
opinion, in which Scalia, J., joined.

------------------------------------------------------------------------------
1
    Together with No. 89-700, Astroline Communications Company Limited
Partnership v. Shurberg Broadcasting of Hartford, Inc., et al., also on
certiorari to the same court.





Subject: 89-453 & 89-700--OPINION, METRO BROADCASTING, INC. v. FCC

 


NOTICE: This opinion is subject to formal revision before publication in
the preliminary print of the United States Reports.  Readers are requested
to notify the Reporter of Decisions, Supreme Court of the United States,
Washington, D. C. 20543, of any typographical or other formal errors, in
order that corrections may be made before the preliminary print goes to
press.

SUPREME COURT OF THE UNITED STATES


Nos. 89-453 and 89-700


METRO BROADCASTING, INC., PETITIONER
v.
89-453
FEDERAL COMMUNICATIONS COMMISSION et al.

ASTROLINE COMMUNICATIONS COMPANY
LIMITED PARTNERSHIP, PETITIONER
v.
89-700
SHURBERG BROADCASTING OF HARTFORD,
INC., et al.


on writs of certiorari to the united states court of appeals for the
district of columbia circuit

[June 27, 1990]



    Justice Brennan delivered the opinion of the Court.
    The issue in these cases, consolidated for decision today, is whether
certain minority preference policies of the Federal Communications
Commission violate the equal protection component of the Fifth Amendment.
The policies in question are (1) a program awarding an enhancement for
minority ownership in comparative proceedings for new licenses, and (2) the
minority "distress sale" program, which permits a limited category of
existing radio and television broadcast stations to be transferred only to
minority-controlled firms.  We hold that these policies do not violate
equal protection principles.

I


A


    The policies before us today can best be understood by reference to the
history of federal efforts to promote minority participation in the
broadcasting industry. {1}  In the Com munications Act of 1934, 48 Stat.
1064, as amended, Congress assigned to the Federal Communications
Commission (FCC or Commission) exclusive authority to grant licenses, based
on "public convenience, interest, or necessity," to persons wishing to
construct and operate radio and television broadcast stations in the United
States.  See 47 U. S. C. 15 151, 301, 303, 307, 309 (1982 ed.).  Although
for the past two decades minorities have constituted at least one-fifth of
the United States population, during this time relatively few members of
minority groups have held broadcast licenses.  In 1971, minorities owned
only 10 of the approximately 7,500 radio stations in the country and none
of the more than 1,000 television stations, see TV 9, Inc. v. FCC, 161 U.
S. App. D. C. 349, 357, n. 28, 495 F. 2d 929, 937, n. 28 (1973), cert.
denied, 419 U. S. 986 (1974); see also 1 U. S. Commission on Civil Rights,
Federal Civil Rights Enforcement Effort-- 1974, p. 49 (Nov. 1974); in 1978,
minorities owned less than 1 percent of the Nation's radio and television
stations, see FCC Minority Ownership Task Force, Report on Minority
Ownership in Broadcasting 1 (1978) (hereinafter Task Force Report); and in
1986, they owned just 2.1 percent of the more than 11,000 radio and
television stations in the United States.  See National Association of
Broadcasters, Minority Broadcasting Facts 6 (Sept. 1986).  Moreover, these
statistics fail to reflect the fact that, as late entrants who often have
been able to obtain only the less valuable stations, many minority
broadcasters serve geographically limited markets with relatively small
audiences. {2}
    The Commission has recognized that the viewing and listening public
suffers when minorities are underrepresented among owners of television and
radio stations:

"Acute underrepresentation of minorities among the owners of broadcast
properties is troublesome because it is the licensee who is ultimately
responsible for identifying and serving the needs and interests of his or
her audience.  Unless minorities are encouraged to enter the mainstream of
the commercial broadcasting business, a substantial portion of our
citizenry will remain under served and the larger, non-minority audience
will be deprived of the views of minorities."  Task Force Report, at 1.


The Commission has therefore worked to encourage minority participation in
the broadcast industry.  The FCC began by formulating rules to prohibit
licensees from discriminating against minorities in employment. {3}  The
FCC explained that "broadcasting is an important mass media form which,
because it makes use of the airwaves belonging to the public, must obtain a
Federal license under a public interest standard and must operate in the
public interest in order to obtain periodic renewals of that license."
Nondiscrimination Employment Practices of Broadcast Licensees, 13 F. C. C.
2d 766, 769 (1968).  Regulations dealing with employment practices were
justified as necessary to enable the FCC to satisfy its obligation under
the Communications Act to promote diversity of programming.  See NAACP v.
FPC, 425 U. S. 662, 670, n. 7 (1976).  The United States Department of
Justice, for example, contended that equal employment opportunity in the
broadcast industry could " `contribute significantly toward reducing and
ending discrimination in other industries' " because of the " `enormous
impact which television and radio have upon American life.' "
Nondiscrimination Employment Practices, 13 F. C. C. 2d, at 771 (citation
omitted).
    Initially, the FCC did not consider minority status as a factor in
licensing decisions, maintaining as a matter of Commission policy that no
preference to minority ownership was warranted where the record in a
particular case did not give assurances that the owner's race likely would
affect the content of the station's broadcast service to the public.  See
Mid-Florida Television Corp., 33 F. C. C. 2d 1, 17-18 (Rev. Bd.), review
denied, 37 F. C. C. 2d 559 (1972), rev'd, TV 9, Inc. v. FCC, supra.  The
Court of Appeals for the District of Columbia Circuit, however, rejected
the Commission's position that an "assurance of superior community service
attributable to . . . Black ownership and participation" was required
before a preference could be awarded.  TV 9, Inc., supra, at 358, 495 F.
2d, at 938.  "Reasonable expectation," the court held, "not advance
demonstration, is a basis for merit to be accorded relevant factors."
Ibid.  See also Garrett v. FCC, 168 U. S. App. D. C. 266, 273, 513 F. 2d
1056, 1063 (1975).
    In April 1977, the FCC conducted a conference on minority ownership
policies, at which participants testified that minority preferences were
justified as a means of increasing diversity of broadcast viewpoint.  See
Task Force Report, at 4-6.  Building on the results of the conference, the
recommendations of the Task Force, the decisions of the Court of Appeals
for the District of Columbia Circuit, and a petition proposing several
minority ownership policies filed with the Commission in January 1978 by
the Office of Telecommunications Policy (then part of the Executive Office
of the President) and the Department of Commerce, {4} the FCC adopted in
May 1978 its Statement of Policy on Minority Ownership of Broadcasting
Facilities, 68 F. C. C. 2d 979.  After recounting its past efforts to
expand broadcast diversity, the FCC concluded:


"[W]e are compelled to observe that the views of racial minorities continue
to be inadequately represented in the broadcast media.  This situation is
detrimental not only to the minority audience but to all of the viewing and
listening public.  Adequate representation of minority viewpoints in
programming serves not only the needs and interests of the minority
community but also enriches and educates the non-minority audience.  It
enhances the diversified programming which is a key objective not only of
the Communications Act of 1934 but also of the First Amendment."  Id., at
980-981 (footnotes omitted).


Describing its actions as only "first steps," id., at 984, the FCC outlined
two elements of a minority ownership policy.     First, the Commission
pledged to consider minority ownership as one factor in comparative
proceedings for new licenses.  When the Commission compares mutually
exclusive applications for new radio or television broadcast stations, {5}
it looks principally at six factors: diversification of control of mass
media communications, full-time participation in station operation by
owners (commonly referred to as the "integration" of ownership and
management), proposed program service, past broadcast record, efficient use
of the frequency, and the character of the applicants.  See Policy
Statement on Comparative Broadcast Hearings, 1 F. C. C. 2d 393, 394-399
(1965); West Michigan Broadcasting Co. v. FCC, 236 U. S. App. D. C. 335,
338-339, 735 F. 2d 601, 604-607 (1984), cert. denied, 470 U. S. 1027
(1985).  In the Policy Statement on Minority Ownership, the FCC announced
that minority ownership and participation in management would be considered
in a comparative hearing as a "plus" to be weighed together with all other
relevant factors.  See WPIX, Inc., 68 F. C. C. 2d 381, 411-412 (1978).  The
"plus" is awarded only to the extent that a minority owner actively
participates in the day-to-day management of the station.
    Second, the FCC outlined a plan to increase minority opportunities to
receive reassigned and transferred licenses through the so-called "distress
sale" policy.  See 68 F. C. C. 2d, at 983.  As a general rule, a licensee
whose qualifications to hold a broadcast license come into question may not
assign or transfer that license until the FCC has resolved its doubts in a
noncomparative hearing.  The distress sale policy is an exception to that
practice, allowing a broadcaster whose license has been designated for a
revocation hearing, or whose renewal application has been designated for
hearing, to assign the license to an FCC-approved minority enterprise.  See
ibid.; Commission Policy Regarding the Advancement of Minority Ownership in
Broadcasting, 92 F. C. C. 2d 849, 851 (1982).  The assignee must meet the
FCC's basic qualifications, and the minority ownership must exceed 50
percent or be controlling. {6}  The buyer must purchase the license before
the start of the revocation or renewal hearing, and the price must not
exceed 75 percent of fair market value.  These two Commission minority
ownership policies are at issue today. {7}

B


1


    In No. 89-453, petitioner Metro Broadcasting, Inc. (Metro) challenges
the Commission's policy awarding preferences to minority owners in
comparative licensing proceedings.  Several applicants, including Metro and
Rainbow Broadcasting (Rainbow), were involved in a comparative proceeding
to select among three mututally exclusive proposals to construct and
operate a new UHF television station in the Orlando, Florida, metropolitan
area.  After an evidentiary hearing, an Administrative Law Judge (ALJ)
granted Metro's application.  Metro Broadcasting, Inc., 96 F. C. C. 2d 1073
(1983).  The ALJ disqualified Rainbow from consideration because of
"misrepresentations" in its application.  Id., at 1087.  On review of the
ALJ's decision, however, the Commission's Review Board disagreed with the
ALJ's finding regarding Rainbow's candor and concluded that Rainbow was
qualified.  Metro Broadcasting, Inc., 99 F. C. C. 2d 688 (Rev. Bd. 1984).
The Board proceeded to consider Rainbow's comparative showing and found it
superior to Metro's.  In so doing, the Review Board awarded Rainbow a
substantial enhancement on the ground that it was 90 percent
Hispanic-owned, whereas Metro had only one minority partner who owned 19.8
percent of the enterprise.  The Review Board found that Rainbow's minority
credit outweighed Metro's local residence and civic participation
advantage.  Id., at 704.  The Commission denied review of the Board's
decision largely without discussion, stating merely that it "agree[d] with
the Board's resolution of this case."  No. 85-558 (Oct. 18, 1985), p. 2;
App. to Pet. for Cert. in No. 89-453, p. 61a.     Metro sought review of
the Commission's order in the United States Court of Appeals for the
District of Columbia Circuit, but the appeal's disposition was delayed; at
the Commission's request, the court granted a remand of the record for
further consideration in light of a separate ongoing inquiry at the
Commission regarding the validity of its minority and female ownership
policies, including the minority enhancement credit.  See Notice of Inquiry
on Racial, Ethnic or Gender Classifications, 1 F. C. C. Rcd 1315 (1986)
(Docket 86-484). {8}  The Commission determined that the outcome in the
licensing proceeding between Rainbow and Metro might depend on whatever the
Commission concluded in its general evaluation of minority ownership
policies, and accordingly it held the licensing proceeding in abeyance
pending further developments in the Docket 86-484 review.  See Metro
Broadcasting, Inc., 2 F. C. C. Rcd 1474, 1475 (1987).
    Prior to the Commission's completion of its Docket 86-484 inquiry,
however, Congress enacted and the President signed into law the FCC
appropriations legislation for fiscal year 1988.  The measure prohibited
the Commission from spending any appropriated funds to examine or change
its minority ownership policies. {9}  Complying with this directive, the
Commission closed its Docket 86-484 inquiry.  See Reexamination of Racial,
Ethnic or Gender Classifications, Order, 3 F. C. C. Rcd 766 (1988).  The
FCC also reaffirmed its grant of the license in this case to Rainbow
Broadcasting.  See Metro Broadcasting, Inc., 3 F. C. C. Rcd 866 (1988).
    The case returned to the Court of Appeals, and a divided panel affirmed
the Commission's order awarding the license to Rainbow.  The court
concluded that its decision was controlled by prior circuit precedent and
noted that the Commission's action was supported by " `highly relevant
congressional action that showed clear recognition of the extreme
underrepresentation of minorities and their perspectives in the broadcast
mass media.' "  Winter Park Communications, Inc. v. FCC, 277 U. S. App. D.
C. 134, 140, 873 F. 2d 347, 353 (1989), quoting West Michigan, 236 U. S.
App. D. C., at 347, 735 F. 2d, at 613.  After petitions for rehearing and
suggestions for rehearing en banc were denied, we granted certiorari.  493
U. S. ---- (1990).

2


    The dispute in No. 89-700 emerged from a series of attempts by Faith
Center, Inc., the licensee of a Hartford, Connecticut television station,
to execute a minority distress sale.  In December 1980, the FCC designated
for a hearing Faith Center's application for renewal of its license.  See
Faith Center, Inc., FCC 80-680 (Dec. 21, 1980).  In February 1981, Faith
Center filed with the FCC a petition for special relief seeking permission
to transfer its license under the distress sale policy.  The Commission
granted the request, see Faith Center, Inc., 88 F. C. C. 2d 788 (1981), but
the proposed sale was not completed, apparently due to the purchaser's
inability to obtain adequate financing.  In September 1983, the Commission
granted a second request by Faith Center to pursue a distress sale to
another minority- controlled buyer.  The FCC rejected objections to the
distress sale raised by Alan Shurberg, who at that time was acting in his
individual capacity. {10}  See Faith Center, Inc., 54 Radio Reg. 2d (P&F)
1286, 1287-1288 (1983); Faith Center, Inc., 55 Radio Reg. 2d (P&F) 41,
44-46 (Mass Media Bur. 1984).  This second distress sale also was not
consummated, apparently because of similar financial difficulties on the
buyer's part.
    In December 1983, respondent Shurberg Broadcasting of Hartford, Inc.
(Shurberg) applied to the Commission for a permit to build a television
station in Hartford.  The application was mutually exclusive with Faith
Center's renewal application, then still pending.  In June 1984, Faith
Center again sought the FCC's approval for a distress sale, requesting
permission to sell the station to Astroline Communications Company, Limited
Partnership (Astroline), a minority applicant.  Shurberg opposed the sale
to Astroline on a number of grounds, including that the FCC's distress sale
program violated Shurberg's right to equal protection.  Shurberg therefore
urged the Commission to deny the distress sale request and to schedule a
comparative hearing to examine the application Shurberg had tendered
alongside Faith Center's renewal request.  In December 1984, the FCC
approved Faith Center's petition for permission to assign its broadcast
license to Astroline pursuant to the distress sale policy.  See Faith
Center, Inc., 99 F. C. C. 2d 1164 (1984).  The FCC rejected Shurberg's
equal protection challenge to the policy as "without merit."  Id., at
1171.
    Shurberg appealed the Commission's order to the United States Court of
Appeals for the District of Columbia Circuit, but disposition of the appeal
was delayed pending completion of the Commission's Docket 86-484 inquiry
into the minority ownership policies.  See supra, at 8.  After Congress
enacted and the President signed into law the appropriations legislation
prohibiting the FCC from continuing the Docket 86-484 proceeding, see
supra, at 9, the Commission reaffirmed its order granting Faith Center's
request to assign its Hartford license to Astroline pursuant to the
minority distress sale policy.  See Faith Center, Inc., 3 F. C. C. Rcd 868
(1988).
    A divided Court of Appeals invalidated the Commission's minority
distress sale policy.  Shurberg Broadcasting of Hartford, Inc. v. FCC, 278
U. S. App. D. C. 24, 876 F. 2d 902 (1989).  In a per curiam opinion, the
panel majority held that the policy "unconstitutionally deprives Alan
Shurberg and Shurberg Broadcasting of their equal protection rights under
the Fifth Amendment because the program is not narrowly tailored to remedy
past discrimination or to promote programming diversity" and that "the
program unduly burdens Shurberg, an innocent nonminority, and is not
reasonably related to the interests it seeks to vindicate."  Id., at 24-25,
876 F. 2d, at 902-903.  Petitions for rehearing and suggestions for
rehearing en banc were denied, and we granted certiorari.  493 U. S. ----
(1990).

II
    It is of overriding significance in these cases that the FCC's minority
ownership programs have been specifically approved--indeed, mandated--by
Congress.  In Fullilove v. Klutznick, 448 U. S. 448 (1980), Chief Justice
Burger, writing for himself and two other Justices, observed that although
"[a] program that employs racial or ethnic criteria . . . calls for close
examination," when a program employing a benign racial classification is
adopted by an administrative agency at the explicit direction of Congress,
we are "bound to approach our task with appropriate deference to the
Congress, a co-equal branch charged by the Constitution with the power to
`provide for the . . . general Welfare of the United States' and `to
enforce, by appropriate legislation,' the equal protection guarantees of
the Fourteenth Amendment."  Id., at 472; see also id., at 491; id., at 510,
and 515-516, n. 14 (Powell, J., concurring); id., at 517-520 (Marshall, J.,
concurring in judgment).  We explained that deference was appropriate in
light of Congress' institutional competence as the national legislature,
see id., at 490 (opinion of Burger, C. J.); id., at 498 (Powell, J.,
concurring), as well as Congress' powers under the Commerce Clause, see
id., at 475-476 (opinion of Burger, C. J.); id., at 499 (Powell, J.,
concurring), the Spending Clause, see id., at 473-475, 478 (opinion of
Burger, C. J.), and the Civil War Amendments, see id., at 476-478 (opinion
of Burger, C. J.); id., at 500, 508-509 (Powell, J., concurring). {11}
    A majority of the Court in Fullilove did not apply strict scrutiny to
the race-based classification at issue.  Three Members inquired "whether
the objectives of th[e] legislation are within the power of Congress" and
"whether the limited use of racial and ethnic criteria . . . is a
constitutionally permissible means for achieving the congressional
objectives."  Id., at 473 (opinion of Burger, C. J.) (emphasis in
original).  Three other Members would have upheld benign racial
classifications that "serve important governmental objectives and are
substantially related to achievement of those objectives."  Id., at 519
(Marshall, J., concurring in judgment).  We apply that standard today.  We
hold that benign race-conscious measures mandated by Congress {12}--even if
those measures are not "remedial" in the sense of being designed to
compensate victims of past governmental or societal discrimination--are
constitutionally permissible to the extent that they serve important
governmental objectives within the power of Congress and are substantially
related to achievement of those objectives.
    Our decision last Term in Richmond v. J. A. Croson Co., 488 U. S. 469
(1989), concerning a minority set-aside program adopted by a municipality,
does not prescribe the level of scrutiny to be applied to a benign racial
classification employed by Congress.  As Justice Kennedy noted, the
question of congressional action was not before the Court, id., at 518
(opinion concurring in part and concurring in judgment), and so Croson
cannot be read to undermine our decision in Fullilove.   In fact, much of
the language and reasoning in Croson reaffirmed the lesson of Fullilove
that race- conscious classifications adopted by Congress to address racial
and ethnic discrimination are subject to a different standard than such
classifications prescribed by state and local governments.  For example,
Justice O'Connor, joined by two other Members of this Court, noted that
"Congress may identify and redress the effects of society-wide
discrimination," 488 U. S., at 490, and that Congress "need not make
specific findings of discrimination to engage in race-conscious relief."
Id., at 489. {13}  Echoing Fullilove's emphasis on Congress as a national
legislature that stands above factional politics, Justice Scalia argued
that as a matter of "social reality and governmental theory," the Federal
Government is unlikely to be captured by minority racial or ethnic groups
and used as an instrument of discrimination.  488 U. S., at 522 (opinion
concurring in judgment).  Justice Scalia explained that "[t]he struggle for
racial justice has historically been a struggle by the national society
against oppression in the individual States," because of the "heightened
danger of oppression from political factions in small, rather than large,
political units."  Id., at 522, 523. {14}
    We hold that the FCC minority ownership policies pass muster under the
test we announce today.  First, we find that they serve the important
governmental objective of broadcast diversity.  Second, we conclude that
they are substantially related to the achievement of that objective.

A
    Congress found that "the effects of past inequities stemming from
racial and ethnic discrimination have resulted in a severe
underrepresentation of minorities in the media of mass communications."  H.
R. Conf. Rep. No. 97-765, p. 43 (1982).  Congress and the Commission do not
justify the minority ownership policies strictly as remedies for victims of
this discrimination, however.  Rather, Congress and the FCC have selected
the minority ownership policies primarily to promote programming diversity,
and they urge that such diversity is an important governmental objective
that can serve as a constitutional basis for the preference policies.  We
agree.
    We have long recognized that "[b]ecause of the scarcity of
[electromagnetic] frequencies, the Government is permitted to put
restraints on licensees in favor of others whose views should be expressed
on this unique medium."  Red Lion Broadcasting Co. v. FCC, 395 U. S. 367,
390 (1969).  The Government's role in distributing the limited number of
broadcast licenses is not merely that of a "traffic officer," National
Broadcasting Co. v. United States, 319 U. S. 190, 215 (1943); rather, it is
axiomatic that broadcasting may be regulated in light of the rights of the
viewing and listening audience and that "the widest possible dissemination
of information from diverse and antagonistic sources is essential to the
welfare of the public."  Associated Press v. United States, 326 U. S. 1, 20
(1945).  Safeguarding the public's right to receive a diversity of views
and information over the airwaves is therefore an integral component of the
FCC's mission.  We have observed that " `the "public interest" standard
necessarily invites reference to First Amendment principles,' " FCC v.
National Citizens Committee for Broadcasting, 436 U. S. 775, 795 (1978),
quoting Columbia Broadcasting System, Inc. v. Democratic National
Committee, 412 U. S. 94, 122 (1973), and that the Communications Act has
designated broadcasters as "fiduciaries for the public."  FCC v. League of
Women Voters of California, 468 U. S. 364, 377 (1984).  "[T]he people as a
whole retain their interest in free speech by radio [and other forms of
broadcast] and their collective right to have the medium function
consistently with the ends and purposes of the First Amendment," and "[i]t
is the right of the viewers and listeners, not the right of broadcasters,
which is paramount."  Red Lion, supra, at 390.  "Congress may . . . seek to
assure that the public receives through this medium a balanced presentation
of information on issues of public importance that otherwise might not be
addressed if control of the medium were left entirely in the hands of those
who own and operate broadcasting stations."  League of Women Voters, supra,
at 377.
    Against this background, we conclude that the interest in enhancing
broadcast diversity is, at the very least, an important governmental
objective and is therefore a sufficient basis for the Commission's minority
ownership policies.  Just as a "diverse student body" contributing to a "
`robust exchange of ideas' " is a "constitutionally permissible goal" on
which a race-conscious university admissions program may be predicated,
University of California Regents v. Bakke, 438 U. S. 265, 311-313 (1978)
(opinion of Powell, J.), the diversity of views and information on the
airwaves serves important First Amendment values.  Cf. Wygant v. Jackson
Board of Education, 476 U. S. 267, 314-315 (1986) (Stevens, J.,
dissenting). {15}  The benefits of such diversity are not limited to the
members of minority groups who gain access to the broadcasting industry by
virtue of the ownership policies; rather, the benefits redound to all
members of the viewing and listening audience.  As Congress found, "the
American public will benefit by having access to a wider diversity of
information sources."  H. R. Conf. Rep. No. 97-765, p. 45 (1982); see also
Minority Ownership of Broadcast Stations: Hearing before the Subcommittee
on Communications of the Senate Committee on Commerce, Science, and
Transportation, 101st Cong., 1st Sess., 66 (1989) (testimony of Roderick
Porter, Deputy Chief, Mass Media Bureau of the FCC) ("[T]he FCC's minority
policies are based on our conclusion that the entire broadcast audience,
regardless of its racial composition, will benefit").

B
    We also find that the minority ownership policies are substantially
related to the achievement of the Government's interest.  One component of
this inquiry concerns the relationship between expanded minority ownership
and greater broadcast diversity; both the FCC and Congress have determined
that such a relationship exists.  Although we do not " `defer' to the
judgment of the Congress and the Commission on a constitutional question,"
and would not "hesitate to invoke the Constitution should we determine that
the Commission has not fulfilled its task with appropriate sensitivity" to
equal protection principles, Columbia Broadcasting System, Inc. v.
Democratic National Committee, 412 U. S., at 103, we must pay close
attention to the expertise of the Commission and the factfinding of
Congress when analyzing the nexus between minority ownership and
programming diversity.  With respect to this "complex" empirical question,
ibid., we are required to give "great weight to the decisions of Congress
and the experience of the Commission."  Id., at 102.

1
    The FCC has determined that increased minority participation in
broadcasting promotes programming diversity.  As the Commission observed in
its 1978 Statement of Policy on Minority Ownership of Broadcasting
Facilities, "ownership of broadcasting facilities by minorities is [a]
significant way of fostering the inclusion of minority views in the area of
programming" and "[f]ull minority participation in the ownership and
management of broadcast facilities results in a more diverse selection of
programming."  68 F. C. C. 2d, at 981.  Four years later, the FCC explained
that it had taken "steps to enhance the ownership and participation of
minorities in the media" in order to "increas[e] the diversity in the
control of the media and thus diversity in the selection of available
programming, benefitting the public and serving the principle of the First
Amendment."  Minority Ownership in Broadcasting, 92 F. C. C. 2d, at
849-850.  See also Radio Jonesboro, Inc., 100 F. C. C. 2d 941, 945, n. 9
(1985) (" `[T]here is a critical underrepresentation of minorities in
broadcast ownership, and full minority participation in the ownership and
management of broadcast facilities is essential to realize the fundamental
goals of programming diversity and diversification of ownership' ")
(citation omitted).  The FCC's conclusion that there is an empirical nexus
between minority ownership and broadcasting diversity is a product of its
expertise, and we accord its judgment deference.
    Furthermore, the FCC's reasoning with respect to the minority ownership
policies is consistent with longstanding practice under the Communications
Act.  From its inception, public regulation of broadcasting has been
premised on the assumption that diversification of ownership will broaden
the range of programming available to the broadcast audience. {16}  Thus,
"it 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., 161 U. S. App. D. C., at 358, 495 F.
2d, at 938.  The Commission has never relied on the market alone to ensure
that the needs of the audience are met.  Indeed, one of the FCC's
elementary regulatory assumptions is that broadcast content is not purely
market-driven; if it were, there would be little need for consideration in
licensing decisions of such factors as integration of ownership and
management, local residence, and civic participation.  In this vein, the
FCC has compared minority preferences to local residence and other
integration credits:


"[B]oth local residence and minority ownership are fundamental
considerations in our licensing scheme.  Both policies complement our
concern with diversification of control of broadcast ownership.  Moreover,
similar assumptions underlie both policies.  We award enhancement credit
for local residence because . . . [i]t is expected that [an] increased
knowledge of the community of license will be reflected in a station's
programming.  Likewise, credit for minority ownership and participation is
awarded in a comparative proceeding [because] `minority ownership is likely
to increase diversity of content, especially of opinion and viewpoint.' "
Radio Jonesboro, Inc., supra, at 945 (footnotes omitted).

2


    Congress also has made clear its view that the minority ownership
policies advance the goal of diverse programming.  In recent years,
Congress has specifically required the Commission, through appropriations
legislation, to maintain the minority ownership policies without
alteration.  See n. 9, supra.  We would be remiss, however, if we ignored
the long history of congressional support for those policies prior to the
passage of the appropriations acts because, for the past two decades,
Congress has consistently recognized the barriers encountered by minorities
in entering the broadcast industry and has expressed emphatic support for
the Commission's attempts to promote programming diversity by increasing
minority ownership.  Limiting our analysis to the immediate legislative
history of the appropriations acts in question "would erect an artificial
barrier to [a] full understanding of the legislative process."  Fullilove
v. Klutznick, 448 U. S., at 502 (Powell, J., concurring).  The "special
attribute [of Congress] as a legislative body lies in its broader mission
to investigate and consider all facts and opinions that may be relevant to
the resolution of an issue.  One appropriate source is the information and
expertise that Congress acquires in the consideration and enactment of
earlier legislation.  After Congress has legislated repeatedly in an area
of national concern, its Members gain experience that may reduce the need
for fresh hearings or prolonged debate when Congress again considers action
in that area."  Id., at 502-503; see also id., at 478 (opinion of Burger,
C. J.) ("Congress, of course, may legislate without compiling the kind of
`record' appropriate with respect to judicial or administrative
proceedings").
    Congress's experience began in 1969, when it considered a bill that
would have eliminated the comparative hearing in license renewal
proceedings, in order to avoid "the filing of a multiplicity of competing
applications, often from groups unknown" and to restore order and
predictability to the renewal process to "give the current license holder
the benefit of the doubt warranted by his previous investment and
experience."  115 Cong. Rec. 14813 (1969) (letter of Sen. Scott).  Congress
heard testimony that, because the most valuable broadcast licenses were
assigned many years ago, comparative hearings at the renewal stage afford
an important opportunity for excluded groups, particularly minorities, to
gain entry into the industry. {17}  Opponents warned that the bill would
"exclude minority groups from station ownership in important markets" by
"fr[eezing]" the distribution of existing licenses. {18}  Congress rejected
the bill.
    Congress confronted the issue again in 1973 and 1974, when
congressional committees held extensive hearings on proposals to extend the
broadcast license period from three to five years and to modify the
comparative hearing process for license renewals.  Witnesses reiterated
that renewals provided a valuable opportunity for minorities to obtain a
foothold in the industry. {19}  The proposals were never enacted, and the
renewal process was left intact.
    During 1978, both the FCC and the Office of Telecommunications Policy
presented their views to Congress as it considered a bill to deregulate the
broadcast industry.  The proposed Communications Act of 1978 would have,
among other things, replaced comparative hearings with a lottery and
created a fund for minorities who sought to purchase stations.  As
described by Representative Markey, the measure was intended to increase
"the opportunities for blacks and women and other minorities in this
country to get into the communications systems in this country so that
their point of view and their interests can be represented."  The
Communications Act of 1978: Hearings on H. R. 13015 before the Subcommittee
on Communications of the House Committee on Interstate and Foreign
Commerce, 95th Cong., 2d Sess., vol. 5, pt. 1, p. 59 (1978).  The bill's
sponsor, Representative Van Deerlin, stated, "It was the hope, and with
some reason the expectation of the framers of the bill, that the most
effective way to reach the inadequacies of the broadcast industry in
employment and programming would be by doing something at the top, that is,
increasing minority ownership and management and control in broadcast
stations."  Id., vol. 3, at 698.
    The Executive Branch objected to the lottery proposal on the ground
that it would harm minorities by eliminating the credit granted under the
comparative hearing scheme as developed by the FCC.  See id., at 50.
Although it acknowledged that a lottery could be structured to alleviate
that concern by attributing a weight to minority ownership, see id., at 85,
the Executive Branch explained that it preferred to grant credit for
minority ownership during comparative hearings as a more finely tuned way
of achieving the Communication Act's goal of broadcast diversity.  See
ibid. (contending that a lottery would not take into account the individual
needs of particular communities).
    Although no lottery legislation was enacted that year, Congress
continued to explore the idea, {20} and when in 1981 it ultimately
authorized a lottery procedure, Congress established a concomitant system
of minority preferences.  See Omnibus Budget Reconciliation Act of 1981,
Pub. L. 97-35, 95 Stat. 357, 736-737.  The Act provided that where more
than one application for an initial license or construction permit was
received, the Commission could grant the license or permit to a qualified
applicant "through the use of a system of random selection," 47 U. S. C.
MDRV 309(i)(1) (1982 ed.), so long as the FCC adopted rules to ensure
"significant preferences" in the lottery process to groups underrepresented
in the ownership of telecommunications facilities.  MDRV 309(i)3)(A).  The
accompanying Conference Report announced Congress's "firm intention" to
award a lottery preference to minorities and other historically
underrepresented groups, so that "the objective of increasing the number of
media outlets owned by such persons or groups [would] be met."  H. R. Conf.
Rep. No. 97-208, 897 (1981).  After the FCC complained of the difficulty of
defining "underrepresented" groups and raised other problems concerning the
statute, {21} Congress enacted a second lottery statute reaffirming its
intention in unmistakable terms.  Section 115 of the Communications
Amendments Act of 1982, Pub. L. 97-259, 96 Stat. 1094 (amending 47 U. S. C.
MDRV 309(i) (1982 ed.)), directs that in any random selection lottery
conducted by the FCC, a preference is to be granted to every applicant
whose receipt of a license would increase the diversification of mass media
ownership and that, "[t]o further diversify the ownership of the media of
mass communications, an additional significant preference [is to be given]
to any applicant controlled by a member or members of a minority group."
47 U. S. C. MDRV 309(i)(3)(A) (1982 ed.).  Observing that the nexus between
ownership and programming "has been repeatedly recognized by both the
Commission and the courts," Congress explained that it sought "to promote
the diversification of media ownership and consequent diversification of
programming content," a principle that "is grounded in the First
Amendment."  H. R. Conf. Rep. No. 97-765, p. 40 (1982).  With this new
mandate from Congress, the Commission adopted rules to govern the use of a
lottery system to award licenses for low power television stations. {22}
    The minority ownership issue returned to the Congress in October 1986,
{23} when a House subcommittee held a hearing to examine the Commission's
inquiry into the validity of its minority ownership policies.  See supra,
at 8.  The subcommittee chair expressed his view that "[t]he most important
message of this hearing today, is that the Commission must not dismantle
these longstanding diversity policies, which Congress has repeatedly
endorsed, until such time as Congress or the courts direct otherwise."
Minority-Owned Broadcast Stations: Hearing on H. R. 5373 before the
Subcommittee on Telecommunications, Consumer Protection, and Finance of the
House Committee on Energy and Commerce, 99th Cong., 2d Sess., 13 (1986)
(Rep. Wirth).  After the Commission issued an order holding in abeyance,
pending completion of the inquiry, actions on licenses and distress sales
in which a minority preference would be dispositive, {24} a number of bills
proposing codification of the minority ownership policies were introduced
in Congress. {25}  Members of Congress questioned representatives of the
FCC during hearings over a span of six months in 1987 with respect to the
FCC appropriation for fiscal year 1988, {26} legislation to reauthorize the
Commission for fiscal years 1988 and 1989, {27} and legislation to codify
the Commission's minority ownership policies. {28}
    Ultimately, Congress chose to employ its appropriations power to keep
the FCC's minority ownership policies in place for fiscal year 1988. {29}
See supra, at 9.  The report of the originating Committee on Appropriations
explained: "The Congress has expressed its support for such policies in the
past and has found that promoting diversity of ownership of broadcast
properties satisfies important public policy goals.  Diversity of ownership
results in diversity of programming and improved service to minority and
women audiences."  S. Rep. No. 100-182, p. 76 (1987).  The Committee
recognized the continuity of congressional action in the field of minority
ownership policies, noting that "[i]n approving a lottery system for the
selection of certain broadcast licensees, Congress explicitly approved the
use of preferences to promote minority and women ownership."  Id., at
76-77.
    Congress has twice extended the prohibition on the use of appropriated
funds to modify or repeal minority ownership policies  {30} and has
continued to focus upon the issue.  For example, in the debate on the
fiscal year 1989 legislation, Senator Hollings, chair of both the
authorizing committee and the appropriations subcommittee for the FCC,
presented to the Senate a summary of a June 1988 report prepared by the
Congressional Research Service, entitled, Minority Broadcast Station
Ownership and Broadcast Programming: Is There a Nexus?  The study, Senator
Hollings reported, "clearly demonstrates that minority ownership of
broadcast stations does increase the diversity of viewpoints presented over
the airwaves."  134 Cong. Rec. S10021 (July 27, 1988).
    As revealed by the historical evolution of current federal policy, both
Congress and the Commission have concluded that the minority ownership
programs are critical means of promoting broadcast diversity.  We must give
great weight to their joint determination.

C
    The judgment that there is a link between expanded minority ownership
and broadcast diversity does not rest on impermissible stereotyping.
Congressional policy does not assume that in every case minority ownership
and management will lead to more minority-oriented programming or to the
expression of a discrete "minority viewpoint" on the airwaves.  Neither
does it pretend that all programming that appeals to minority audiences can
be labeled "minority programming" or that programming that might be
described as "minority" does not appeal to nonminorities.  Rather, both
Congress and the FCC maintain simply that expanded minority ownership of
broadcast outlets will, in the aggregate, result in greater broadcast
diversity.  A broadcasting industry with representative minority
participation will produce more variation and diversity than will one whose
ownership is drawn from a single racially and ethnically homogeneous group.
The predictive judgment about the overall result of minority entry into
broadcasting is not a rigid assumption about how minority owners will
behave in every case but rather is akin to Justice Powell's conclusion in
Bakke that greater admission of minorities would contribute, on average,
"to the `robust exchange of ideas.' "  438 U. S., at 313.  To be sure,
there is no ironclad guarantee that each minority owner will contribute to
diversity.  But neither was there an assurance in Bakke that minority
students would interact with nonminority students or that the particular
minority students admitted would have typical or distinct "minority"
viewpoints.  See id., at 312 (opinion of Powell, J.) (noting only that
educational excellence is "widely believed to be promoted by a diverse
student body") (emphasis added); id., at 313, n. 48 (" `In the nature of
things, it is hard to know how, and when, and even if, this informal
"learning through diversity" actually occurs' ") (citation omitted).
    Although all station owners are guided to some extent by market demand
in their programming decisions, Congress and the Commission have determined
that there may be important differences between the broadcasting practices
of minority owners and those of their nonminority counterparts.  This
judgment--and the conclusion that there is a nexus between minority
ownership and broadcasting diversity--is corroborated by a host of
empirical evidence. {31}   Evidence suggests that an owner's minority
status influences the selection of topics for news coverage and the
presentation of editorial viewpoint, especially on matters of particular
concern to minorities.  "[M]inority ownership does appear to have specific
impact on the presentation of minority images in local news,"  {32}
inasmuch as minority-owned stations tend to devote more news time to topics
of minority interest and to avoid racial and ethnic stereotypes in
portraying minorities. {33}  In addition, studies show that a minority
owner is more likely to employ minorities in managerial and other important
roles where they can have an impact on station policies. {34}  If the FCC's
equal employment policies "ensure that . . . licensees' programming fairly
reflects the tastes and viewpoints of minority groups," NAACP v. FPC, 425
U. S., at 670, n. 7, it is difficult to deny that minority-owned stations
that follow such employment policies on their own will also contribute to
diversity.  While we are under no illusion that members of a particular
minority group share some cohesive, collective viewpoint, we believe it a
legitimate inference for Congress and the Commission to draw that as more
minorities gain ownership and policymaking roles in the media, varying
perspectives will be more fairly represented on the airwaves.  The policies
are thus a product of " `analysis' " rather than a " `stereotyped reaction'
" based on " `[h]abit.' "  Fullilove, 448 U. S., at 534, n. 4 (Stevens, J.,
dissenting) (citation omitted).
    Our cases demonstrate that the reasoning employed by the Commission and
Congress is permissible.  We have recognized, for example, that the fair
cross-section requirement of the Sixth Amendment forbids the exclusion of
groups on the basis of such characteristics as race and gender from a jury
venire because "[w]ithout that requirement, the State could draw up jury
lists in such manner as to produce a pool of prospective jurors
disproportionately ill disposed towards one or all classes of defendants,
and thus more likely to yield petit juries with similar disposition."
Holland v. Illinois, 493 U. S. ----, ---- (1990) (slip op., at 6).  It is a
small step from this logic to the conclusion that including minorities in
the electromagnetic spectrum will be more likely to produce a "fair cross
section" of diverse content.  Cf. Duren v. Missouri, 439 U. S. 357,
358-359, 363-364 (1979); Taylor v. Lousiana, 419 U. S. 522, 531-533 (1975).
{35}  In addition, many of our voting rights cases operate on the
assumption that minorities have particular viewpoints and interests worthy
of protection.  We have held, for example, that in safeguarding the "
`effective exercise of the electoral franchise' " by racial minorities,
United Jewish Organizations v. Carey, 430 U. S. 144, 159 (1977) (plurality
opinion), quoting Beer v. United States, 425 U. S. 130, 141 (1976), "[t]he
permissible use of racial criteria is not confined to eliminating the
effects of past discriminatory districting or apportionment."  430 U. S.,
at 161.  Rather, a State subject to MDRV 5 of the Voting Rights Act of
1965, 79 Stat. 439, as amended, 42 U. S. C. MDRV 1973c, may "deliberately
creat[e] or preserv[e] black majorities in particular districts in order to
ensure that its reapportionment plan complies with MDRV 5"; "neither the
Fourteenth nor the Fifteenth Amendment mandates any per se rule against
using racial factors in districting and apportionment."  430 U. S., at
161.

D
    We find that the minority ownership policies are in other relevant
respects substantially related to the goal of promoting broadcast
diversity.  First, the Commission adopted and Congress endorsed minority
ownership preferences only after long study and painstaking consideration
of all available alternatives.  See Fullilove, 448 U. S., at 463-467
(opinion of Burger, C. J.); id., at 511 (Powell, J., concurring).  For many
years, the FCC attempted to encourage diversity of programming content
without consideration of the race of station owners. {36}  When it first
addressed the issue, in a 1946 report entitled Public Service
Responsibility of Broadcast Licensees (Blue Book), the Commission stated
that although licensees bore primary responsibility for program service,
"[i]n issuing and in renewing the licenses of broadcast stations, the
Commission [would] give particular consideration to four program service
factors relevant to the public interest."  Id., at 55. {37}  In 1960, the
Commission altered course somewhat, announcing that "the principal
ingredient of the licensee's obligation to operate his station in the
public interest is the diligent, positive and continuing effort . . . to
discover and fulfill the tastes, needs, and desires of his community or
service area, for broadcast service."  Network Programming Inquiry, Report
and Statement of Policy, 25 Fed. Reg. 7295 (1960). Licensees were advised
that they could meet this obligation in two ways: by canvassing members of
the listening public who could receive the station's signal, and by meeting
with "leaders in community life . . . and others who bespeak the interests
which make up the community."  Id., at 7296.
    By the late 1960's, it had become obvious that these efforts had failed
to produce sufficient diversity in programming.  The Kerner Commission, for
example, warned that the various elements of the media "have not
communicated to whites a feeling for the difficulties and frustrations of
being a Negro in the United States.  They have not shown understanding or
appreciation of--and thus have not communicated--a sense of Negro culture,
thought, or history. . . . The world that television and newspapers offer
to their black audience is almost totally white . . . ."  Report of the
National Advisory Commission on Civil Disorders 210 (1968).  In response,
the Commission promulgated equal employment opportunity regulations, see
supra, at 3-4, and formal "ascertainment" rules requiring a broadcaster as
a condition of license "to ascertain the problems, needs and interests of
the residents of his community of license and other areas he undertakes to
serve," and to specify "what broadcast matter he proposes to meet those
problems, needs and interests."  Primer on Ascertainment of Community
Problems by Broadcast Applicants, 27 F. C. C. 2d 650, 682 (1971). {38}  The
Commission explained that although it recognized there was "no single
answer for all stations," it expected each licensee to devote a "
`significant proportion' " of a station's programming to community
concerns.  Id., at 686 (citation omitted). {39}  The Commission expressly
included "minority and ethnic groups" as segments of the community that
licensees were expected to consult.  See, e. g., Ascertainment of Community
Problems by Broadcast Applicants, 57 F. C. C. 2d 418, 419, 442 (1976);
Ascertainment of Community Problems by Noncommercial Educational Broadcast
Applicants, 54 F. C. C. 2d 766, 767, 775, 776 (1975).  The FCC held that a
broadcaster's failure to ascertain and serve the needs of sizable minority
groups in its service area was, in itself, a failure of licensee
responsibility regardless of any intent to discriminate and was a
sufficient ground for the nonrenewal of a license.  See, e. g., Chapman
Radio and Television, Co., 24 F. C. C. 2d 282, 286 (1970).  The Commission
observed that "[t]he problems of minorities must be taken into
consideration by broadcasters in planning their program schedules to meet
the needs and interests of the communities they are licensed to serve."
Time-Life Broadcast, Inc., 33 F. C. C. 2d 1081, 1093 (1972); see also
Mahoning Valley Broadcasting Corp., 39 F. C. C. 2d 52, 58 (1972); WKBN
Broadcasting Corp., 30 F. C. C. 2d 958, 970 (1971).  Pursuant to this
policy, for example, the Commission refused to renew licenses for eight
educational stations in Alabama and denied an application for a
construction permit for a ninth, all on the ground that the licensee "did
not take the trouble to inform itself of the needs and interests of a
minority group consisting of 30 percent of the population of the State of
Alabama" and that such a failure was "fundamentally irreconcilable with the
obligations which the Communications Act places upon those who receive
author- izations to use the airwaves."  Alabama Educational Television
Comm'n, 50 F. C. C. 2d 461, 472, 473 (1975), citing Red Lion Broadcasting
Co. v. FCC, 395 U. S. 367 (1969).  The Commission's ascertainment policy
was not static; in order to facilitate application of the ascertainment
requirement, the Commission devised a community leader checklist consisting
of 19 groups and institutions commonly found in local communities, see 57
F. C. C. 2d, at 418-419, and it continued to consider improvements to the
ascertainment system.  See, e. g., Amendment of Primers on Ascertainment of
Community Problems by Commercial Broadcast Renewal Applicants and
Noncommercial Educational Broadcast Applicants, Permittees and Licensees,
47 Radio Reg. 2d (P&F) 189 (1980).
    By 1978, however, the Commission had determined that even these efforts
at influencing broadcast content were not effective means of generating
adequate programming diversity.  The FCC noted that "[w]hile the
broadcasting industry has on the whole responded positively to its
ascertainment obligations and has made significant strides in its
employment practices, we are compelled to observe that the views of racial
minorities continue to be inadequately represented in the broadcast media."
Minority Ownership Statement, 68 F. C. C. 2d, at 980 (footnotes omitted).
As support, the Commission cited a report by the United States Commission
on Civil Rights, which found that minorities "are underrepresented on
network dramatic television programs and on the network news.  When they do
appear they are frequently seen in token or stereotyped roles."  Window
Dressing on the Set 3 (Aug. 1977).  The Commission concluded that "despite
the importance of our equal employment opportunity rules and ascertainment
policies in assuring diversity of programming it appears that additional
measures are necessary and appropriate.  In this regard, the Commission
believes that ownership of broadcast facilities by minorities is another
significant way of fostering the inclusion of minority views in the area of
programming."  68 F. C. C. 2d, at 981; see also Commission Policy Regarding
Advancement of Minority Ownership in Broadcasting, 92 F. C. C. 2d 849, 850
(1982) ("[I]t became apparent that in order to broaden minority voices and
spheres of influence over the airwaves, additional measures were necessary"
beyond the equal employment and ascertainment rules). {40}
    In short, the Commission established minority ownership preferences
only after long experience demonstrated that race-neutral means could not
produce adequate broadcasting diversity. {41}  The FCC did not act
precipitately in devising the programs we uphold today; to the contrary,
the Commission undertook thorough evaluations of its policies three
times--in 1960, 1971, and 1978--before adopting the minority ownership
programs. {42}  In endorsing the minority ownership preferences, Congress
agreed with the Commission's assessment that race-neutral alternatives had
failed to achieve the necessary programming diversity. {43}
    Moreover, the considered nature of the Commission's judgment in
selecting the particular minority ownership policies at issue today is
illustrated by the fact that the Commission has rejected other types of
minority preferences.  For example, the Commission has studied but refused
to implement the more expansive alternative of setting aside certain
frequencies for minority broadcasters.  See Nighttime Operations on Clear
Channels, 3 F. C. C. Rcd 3597, 3599-3600 (1988); Deletion of AM Acceptance
Criteria, 102 F. C. C. 2d 548, 555-558 (1985); Clear Channel Broadcasting,
78 F. C. C. 2d 1345, reconsideration denied, 83 F. C. C. 2d 216, 218-219
(1980), aff'd sub nom. Loyola University v. FCC, 216 U. S. App. D. C. 403,
670 F. 2d 1222 (1982).  In addition, in a ruling released the day after it
adopted the comparative hearing credit and the distress sale preference,
the FCC declined to adopt a plan to require 45-day advance public notice
before a station could be sold, which had been advocated on the ground that
it would ensure minorities a chance to bid on stations that might otherwise
be sold to industry insiders without ever coming on the market.  See 43
Fed. Reg. 24560 (1978). {44}  Soon afterward, the Commission rejected other
minority ownership proposals advanced by the Office of Telecommunications
Policy and the Department of Commerce that sought to revise the FCC's time
brokerage, multiple ownership, and other policies. {45}
    The minority ownership policies, furthermore, are aimed directly at the
barriers that minorities face in entering the broadcasting industry.  The
Commission's Task Force identified as key factors hampering the growth of
minority ownership a lack of adequate financing, paucity of information
regarding license availability, and broadcast inexperience.  See Task Force
Report, at 8-29; Advisory Committee on Alternative Financing for Minority
Opportunities in Tele communications, Final Report, Strategies for
Advancing Minority Ownership Opportunities 25-30 (May 1982).  The
Commission assigned a preference to minority status in the comparative
licensing proceeding, reasoning that such an enhancement might help to
compensate for a dearth of broadcasting experience.  Most license
acquisitions, however, are by necessity purchases of existing stations,
because only a limited number of new stations are available, and those are
often in less desirable markets or on less profitable portions of spectrum,
such as the UHF band. {46}  Congress and the FCC therefore found a need for
the minority distress sale policy, which helps to overcome the problem of
inadequate access to capital by lowering the sale price and the problem of
lack of information by providing existing licensees with an incentive to
seek out minority buyers.  The Commission's choice of minority ownership
policies thus addressed the very factors it had isolated as being
responsible for minority underrepresentation in the broadcast industry.
    The minority ownership policies are "appropriately limited in extent
and duration, and subject to reassessment and reevaluation by the Congress
prior to any extension or re-enactment."  Fullilove, 448 U. S., at 489
(opinion of Burger, C. J.) (footnote omitted).  Although it has underscored
emphatically its support for the minority ownership policies, Congress has
manifested that support through a series of appropriations acts of finite
duration, thereby ensuring future reevaluations of the need for the
minority ownership program as the number of minority broadcasters
increases.  In addition, Congress has continued to hold hearings on the
subject of minority ownership. {47}  The FCC has noted with respect to the
minority preferences contained in the lottery statute, 47 U. S. C. MDRV
309(i)(3)(A) (1982 ed.), that Congress instructed the Commission to "report
annually on the effect of the preference system and whether it is serving
the purposes intended.  Congress will be able to further tailor the program
based on that information, and may eliminate the preferences when
appropriate."  Amendment of Commission's Rules to Allow Selection from
Among Certain Competing Applications Using Random Selection or Lotteries
Instead of Comparative Hearings, 93 F. C. C. 2d 952, 974 (1983).
Furthermore, there is provision for administrative and judicial review of
all Commission decisions, which guarantees both that the minority ownership
policies are applied correctly in individual cases, {48} and that there
will be frequent opportunities to revisit the merits of those policies.
Congress and the Commission have adopted a policy of minority ownership not
as an end in itself, but rather as a means of achieving greater programming
diversity.  Such a goal carries its own natural limit, for there will be no
need for further minority preferences once sufficient diversity has been
achieved.  The FCC's plan, like the Harvard admissions program discussed in
Bakke, contains the seed of its own termination.  Cf. Johnson v.
Transportation Agency, Santa Clara County, Cal., 480 U. S. 616, 640 (1987)
(agency's "express commitment to `attain' a balanced work force" ensures
that plan will be of limited duration).
    Finally, we do not believe that the minority ownership policies at
issue impose impermissible burdens on nonminorities. {49}  Although the
nonminority challengers in these cases concede that they have not suffered
the loss of an already-awarded broadcast license, they claim that they have
been handicapped in their ability to obtain one in the first instance.  But
just as we have determined that "[a]s part of this Nation's dedication to
eradicating racial discrimination, innocent persons may be called upon to
bear some of the burden of the remedy," Wygant, 476 U. S., at 280-281
(opinion of Powell, J.), we similarly find that a congressionally mandated
benign race-conscious program that is substantially related to the
achievement of an important governmental interest is consistent with equal
protection principles so long as it does not impose undue burdens on
nonminorities.  Cf. Fullilove, 448 U. S., at 484 (opinion of Burger, C. J.)
("It is not a constitutional defect in this program that it may disappoint
the expectations of nonminority firms.  When effectuating a limited and
properly tailored remedy to cure the effects of prior discrimination, such
`a sharing of the burden' by innocent parties is not impermissible")
(citation omitted); id., at 521 (Marshall, J., concurring in judgment).
    In the context of broadcasting licenses, the burden on nonminorities is
slight.  The FCC's responsibility is to grant licenses in the "public
interest, convenience, or necessity," 47 U. S. C. 15 307, 309 (1982 ed.),
and the limited number of frequencies on the electromagnetic spectrum means
that "[n]o one has a First Amendment right to a license."  Red Lion, 395 U.
S., at 389.  Applicants have no settled expectation that their applications
will be granted without consideration of public interest factors such as
minority ownership.  Award of a preference in a comparative hearing or
transfer of a station in a distress sale thus contravenes "no legitimate
firmly rooted expectation[s]" of competing applicants.  Johnson, supra, at
638.
    Respondent Shurberg insists that because the minority distress sale
policy operates to exclude nonminority firms completely from consideration
in the transfer of certain stations, it is a greater burden than the
comparative hearing preference for minorities, which is simply a "plus"
factor considered together with other characteristics of the applicants.
{50}  Cf. Bakke, 438 U. S., at 317-318; Johnson, supra, at 638.  We
disagree that the distress sale policy imposes an undue burden on
nonminorities.  By its terms, the policy may be invoked at the Commission's
discretion only with respect to a small fraction of broadcast
licenses--those designated for revocation or renewal hearings to examine
basic qualification issues--and only when the licensee chooses to sell out
at a distress price rather than to go through with the hearing.  The
distress sale policy is not a quota or fixed quantity set-aside.  Indeed,
the nonminority firm exercises control over whether a distress sale will
ever occur at all, because the policy operates only where the
qualifications of an existing licensee to continue broadcasting have been
designated for hearing and no other applications for the station in
question have been filed with the Commission at the time of the
designation.  See Clarification of Distress Sale Policy, 44 Radio Reg. 2d
(P&F) 479 (1978).  Thus, a nonminority can prevent the distress sale
procedures from ever being invoked by filing a competing application in a
timely manner. {51}
    In practice, distress sales have represented a tiny fraction--less than
four tenths of one percent--of all broadcast sales since 1979.  See Brief
for Federal Communications Commission in No. 89-700, p. 44.  There have
been only 38 distress sales since the policy was commenced in 1978.  See A.
Barrett, Federal Communications Commission, Minority Employment and
Ownership in the Communications Market: What's Ahead in the 90's?, p. 7
(Address to the Bay Area Black Media Conference, San Francisco, April 21,
1990).  This means that, on average, only about .20 percent of renewal
applications filed each year have resulted in distress sales since the
policy was commenced in 1978.  See 54 FCC Ann. Rep. 33 (1988). {52}
Nonminority firms are free to compete for the vast remainder of license
opportunities available in a market that contains over 11,000 broadcast
properties.  Nonminorities can apply for a new station, buy an existing
station, file a competing application against a renewal application of an
existing station, or seek financial participation in enterprises that
qualify for distress sale treatment.  See Task Force Report, at 9-10.  The
burden on nonminority firms is at least as "relatively light" as that
created by the program at issue in Fullilove, which set aside for
minorities 10 percent of federal funds granted for local public works
projects.  448 U. S., at 484 (opinion of Burger, C. J.); see also id., at
485, n. 72.

III


    The Commission's minority ownership policies bear the imprimatur of
longstanding congressional support and direction and are substantially
related to the achievement of the important governmental objective of
broadcast diversity.  The judgment in No. 89-453 is affirmed, the judgment
in No. 89-700 is reversed, and the cases are remanded for proceedings
consistent with this opinion.

It is so ordered.


 
 
 
 
 

------------------------------------------------------------------------------
1
    The FCC has defined the term "minority" to include "those of Black,
Hispanic Surnamed, American Eskimo, Aleut, American Indian and Asiatic
American extraction."  Statement of Policy on Minority Ownership of
Broadcasting Facilities, 68 F. C. C. 2d 979, 980, n. 8 (1978).  See also
Commission Policy Regarding Advancement of Minority Ownership in
Broadcasting, 92 F. C. C. 2d 849, 849, n. 1 (1982), citing 47 U. S. C. MDRV
309(i)(3)(C) (1982 ed.).

2
    See Task Force Report, at 1; Wimmer, Deregulation and Market Failure in
Minority Programming: The Socioeconomic Dimensions of Broadcast Reform, 8
Comm/Ent L. J. 329, 426, n. 516 (1986).  See also n. 46, infra.
3
    See, e. g., Nondiscrimination Employment Practices of Broadcast
Licensees, 18 F. C. C. 2d 240 (1969); Nondiscrimination Employment
Practices of Broadcast Licensees, 23 F. C. C. 2d 430 (1970);
Nondiscrimination in Employment Policies and Practices of Broadcast
Licensees, 54 F. C. C. 2d 354 (1975); Nondiscrimination in Employment
Policies and Practices of Broadcast Licensees, 60 F. C. C. 2d 226 (1976).
The FCC's current equal employment opportunity policy is outlined at 47 CFR
MDRV 73.2080 (1989).

4
    See Telecommunications Minority Assistance Program, Public Papers of
the Presidents, Jimmy Carter, vol. 1, Jan. 31, 1978, pp. 252, 253 (1979).
The petition observed that "[m]inority ownership markedly serves the public
interest, for it ensures the sustained and increased sensitivity to
minority audiences."  Id., at 252.  See also n. 45, infra.

5
    In Ashbacker Radio Corp. v. FCC, 326 U. S. 327 (1945), we held that
when the Commission was faced with two "mutually exclusive" bona fide
applications for license--that is, two proposed stations that would be
incompatible technologically--it was obligated to set the applications for
a comparative hearing.  See id., at 333.

6
    In 1982, the FCC determined that a limited partnership could qualify as
a minority enterprise if the general partner is a minority who holds at
least a 20 percent interest and who will exercise "complete control over a
station's affairs."  92 F. C. C. 2d, at 855.

7
    The FCC also announced in its 1978 statement a tax certificate policy
and other minority preferences, see 68 F. C. C. 2d, at 983 and n. 19; 92 F.
C. C. 2d, at 850-851, which are not at issue today.  Similarly, the
Commission's gender preference policy, see Gainesville Media, Inc., 70 F.
C. C. 2d 143, 149 (Rev. Bd. 1978); Mid-Florida Television Corp., 69 F. C.
C. 2d 607, 651-652 (Rev. Bd. 1978), set aside on other grounds, 87 F. C. C.
2d 203 (1981), is not before us today.  See Winter Park Communications,
Inc. v. FCC, 277 U. S. App. D. C. 134, 139-140, n. 5, 873 F. 2d 347,
352-353, n. 5 (1989); Metro Broadcasting, Inc., 3 F. C. C. Rcd 866, 867, n.
1 (1988).

8
    That inquiry grew out of the Court of Appeals' decision in Steele v.
FCC, 248 U. S. App. D. C. 279, 770 F. 2d 1192 (1985), in which a panel of
the Court of Appeals held that the FCC lacks statutory authority to grant
enhancement credits in comparative license proceedings to women owners.
Although the panel expressly stated that "[u]nder our decisions, the
Commission's authority to adopt minority preferences . . . is clear," id.,
at 283, 770 F. 2d, at 1196, the Commission believed that the court's
opinion nevertheless raised questions concerning its minority ownership
policies.  After the en banc court vacated the panel opinion and set the
case for rehearing, the FCC requested that the Court of Appeals remand the
case without considering the merits to allow the FCC to reconsider the
basis of its preference policy.  The request was granted.  The Commission,
"despite its prior misgivings, has now indicated clearly that it supports
the distress sale" and other minority ownership policies, Shurberg
Broadcasting of Hartford, Inc. v. FCC, 278 U. S. App. D. C. 24, 81, 876 F.
2d 902, 959 (1989) (Wald, C. J., dissenting from denial of rehearing en
banc), and has defended them before this Court.

9
    The appropriations legislation provided:

" That none of the funds appropriated by this Act shall be used to repeal,
to retroactively apply changes in, or to continue a reexamination of, the
policies of the Federal Communications Commission with respect to
comparative licensing, distress sales and tax certificates granted under 26
U. S. C. MDRV 1071, to expand minority and women ownership of broadcasting
licenses, including those established in Statement of Policy on Minority
Ownership of Broadcast Facilities, 68 F. C. C. 2d 979 and 69 F. C. C. 2d
1591, as amended, 52 R. R. 2d [1301] (1982) and Mid-Florida Television
Corp., [69] F. C. C. 2d 607 Rev. Bd. (1978) which were effective prior to
September 12, 1986, other than to close MM Docket No. 86-484 with a
reinstatement of prior policy and a lifting of suspension of any sales,
licenses, applications, or proceedings, which were suspended pending the
conclusion of the inquiry."  Continuing Appropriations Act for Fiscal Year
1988, Pub. L. 100- 202, 101 Stat. 1329-1331.

10
    Mr. Shurberg is the sole owner of Shurberg Broadcasting of Hartford,
Inc., respondent in No. 89-700.

11
    Justice O'Connor's suggestion that the deference to Congress described
in Fullilove rested entirely on Congress' powers under MDRV 5 of the
Fourteenth Amendment, post, at 5-6, is simply incorrect.  The Chief Justice
expressly noted that in enacting the provision at issue, "Congress employed
an amalgam of its specifically delegated powers."  448 U. S., at 473.

12
    We fail to understand how Justice Kennedy can pretend that examples of
"benign" race-conscious measures include South African apartheid, the
"separate-but-equal" law at issue in Plessy v. Ferguson, 163 U. S. 537
(1896), and the internment of American citizens of Japanese ancestry upheld
in Korematsu v. United States, 323 U. S. 214 (1944).  We are confident that
an "examination of the legislative scheme and its history," Weinberger v.
Wiesenfeld, 420 U. S. 636, 648, n. 16 (1975), will separate benign measures
from other types of racial classifications.  See, e. g., Mississippi
University for Women v. Hogan, 458 U. S. 718, 728-730 (1982).  Of course,
"the mere recitation of a benign, compensatory purpose is not an automatic
shield which protects against any inquiry into the actual purposes
underlying a statutory scheme."  Weinberger, 420 U. S., at 648; see also
Brest, Foreword: In Defense of the Antidiscrimination Principle, 90 Harv.
L. Rev. 1, 21-22 (1976); Strauss, The Myth of Colorblindness, 1986 Sup. Ct.
Rev. 99, 128-129.  The concept of benign race-conscious measures--even
those with at least some non-remedial purposes--is as old as the Fourteenth
Amendment.  For example, the Freedman's Bureau Acts authorized the
provision of land, education, medical care, and other assistance to
Afro-Americans.  See, e. g., Cong. Globe, 39th Cong., 1st Sess., 630 (1866)
(statement of Rep. Hubbard) ("I think that the nation will be a great
gainer by encouraging the policy of the Freedman's Bureau, in the
cultivation of its wild lands, in the increased wealth which industry
brings and in the restoration of law and order in the insurgent States").
See generally Sandalow, Racial Preferences in Higher Education: Political
Responsibility and the Judicial Role, 42 U. Chi. L. Rev. 653, 664-666
(1975); Schnapper, Affirmative Action and the Legislative History of the
Fourteenth Amendment, 71 Va. L. Rev. 753, 754-783 (1985).

13
    Justice O'Connor, in a passage joined by The Chief Justice and Justice
White, observed that the decision in Fullilove had been influenced by the
fact that the set-aside program at issue was " `congressionally mandated.'
"  488 U. S., at 491 (citation omitted, emphasis in original).  Justice
O'Connor's opinion acknowledged that our decision in Fullilove regarding a
congressionally approved preference "did not employ `strict scrutiny.' "
488 U. S., at 487.

14
    See also id., at 495-496 (opinion of O'Connor, J.); Ely, The
Constitutionality of Reverse Racial Discrimination, 41 U. Chi. L. Rev. 723,
728-735 (1974), cited with approval in Croson, 488 U. S. at 496.

15
    In Wygant v. Jackson Board of Education, Justice O'Connor noted that,
"although its precise contours are uncertain, a state interest in the
promotion of racial diversity has been found sufficiently `compelling,' at
least in the context of higher education, to support the use of racial
considerations in furthering that interest."  476 U. S., at 286 (opinion
concurring in part and concurring in judgment).  She further stated that
"nothing the Court has said today necessarily forecloses the possibility
that the Court will find other governmental interests which have been
relied upon in the lower courts but which have not been passed on here to
be sufficiently `important' or `compelling' to sustain the use of
affirmative action policies."  Ibid.  Compare post, at 11 (O'Connor, J.,
dissenting).

16
    For example, in 1953, the Commission promulgated the first of its
multiple ownership rules, the "fundamental purpose" of which is "to promote
diversification of ownership in order to maximize diversification of
program and service viewpoints."  Amendment of Sections 3.35, 3.240, and
3.636 of Rules and Regulations Relating to Multiple Ownership of AM, FM,
and Television Broadcast Stations, Report and Order, 18 F. C. C. 288, 291.
Initially, the multiple ownership rules limited only the common control of
broadcast stations.  The Commission's current rules include limitations on
broadcast/newspaper cross-ownership, cable/television cross-ownership,
broadcast service cross-ownership, and common control of broadcast
stations.  See 47 CFR 15 73.3555, 76.501 (1989).  The Commission has always
focused on ownership, on the theory that "ownership carries with it the
power to select, to edit, and to choose the methods, manner and emphasis of
presentation, all of which are a critical aspect of the Commission's
concern with the public interest."  Amendment of Sections 73.34, 73.240,
and 73.636 of Commission's Rules Relating to Multiple Ownership of
Standard, FM, and Television Broadcast Stations, Second Report and Order,
50 F. C. C. 2d 1046, 1050 (1975); see also Amendment of Sections 73.35,
73.240, and 73.636 of Commission Rules Relating to Multiple Ownership of
Standard, FM, and Television Broadcast Stations, First Report and Order, 22
F. C. C. 2d 306, 307 (1970) (multiple ownership rules "promot[e]
diversification of programming sources and viewpoints"); Amendment of
Sections 73.35, 73.240, and 73.636 of Commission's Rules Relating to
Multiple Ownership of Standard, FM and Television Broadcast Stations,
Report and Order, 45 F. C. C. 1476, 1477, 1482 (1964) ("the greater the
diversity of ownership in a particular area, the less chance there is that
a single person or group can have `an inordinate effect in a . . .
programming sense, on public opinion at the regional level' ");
Editorializing by Broadcast Licensees, 13 F. C. C. 1246, 1252 (1949)
(ownership enables licensee "to insure that his personal viewpoint on any
particular issue is presented in his station's broadcasts").

17
    See Amend the Communications Act of 1934: Hearings on S. 2004 before
the Subcommittee on Communications of the Senate Committee on Commerce,
91st Cong., 1st Sess., pt. 1, p. 128 (1969) (testimony of Earle Moore,
National Citizens Committee for Broadcasting); id., pt. 2, at 520- 521
(testimony of John Pamberton, American Civil Liberties Union); id., at
566-567 (testimony of David Batzka, United Christian Missionary Society);
id., at 626-627 (testimony of William Hudgins, Freedom National Bank).

18
    Id., at 642 (testimony of John McLaughlin, then associate editor of
America magazine).

19
    See Broadcast License Renewal: Hearings on H. R. 5546 et al. before the
Subcommittee on Communications and Power of the House Committee on
Interstate and Foreign Commerce, 93d Cong., 1st Sess., pt. 1, pp. 495-497
(1973) (testimony of William E. Hanks, Pittsburgh Community Coalition for
Media Change); id., at 552-559 (testimony of Rev. George Brewer, Greater
Dallas-Fort Worth Coalition for the Free Flow of Information); id., at
572-594 (testimony of James McCuller, Action for a Better Community, Inc.);
id., pt. 2, at 686-689 (testimony of Morton Hamburg, adjunct assistant
professor of communications law, New York University); Broadcast License
Renewal Act: Hearings on S. 16 et al. before the Subcommittee on
Communications of the Senate Committee on Commerce, 93d Cong., 2d Sess.,
pt. 1, pp. 325-329 (1974) (testimony of Ronald H. Brown, National Urban
League); id., at 376-381 (testimony of Gladys T. Lindsay, Citizens
Committee on Media); id., at 408-411 (testimony of Joseph L. Rauh, Jr.,
Leadership Conference on Civil Rights and Americans for Democratic Action);
id., pt. 2, at 785-800 (testimony of Manuel Fierro, Raza Association of
Spanish Surnamed Americans).

20
    For example, the proposed Communications Act of 1979 would have
provided that any minority applicant for a previously unassigned license
would be counted twice in the lottery pool.  See Staff of the Subcommittee
on Communications of the House Committee on Interstate and Foreign
Commerce, H. R. 3333, "The Communications Act of 1979" Section-by- Section
Analysis, 96th Cong., 1st Sess., 39-41 (Comm. Print 1979).

21
    See Amendment of Part 1 of Commission's Rules to Allow Selection from
Among Mutually Exclusive Competing Applications Using Random Selection or
Lotteries Instead of Comparative Hearings, 89 F. C. C. 2d 257, 277-284
(1982).

22
    See Amendment of the Commission's Rules to Allow the Selection from
Among Certain Competing Applications Using Random Selection or Lotteries
Instead of Comparative Hearings, 93 F. C. C. 2d 952 (1983).

23
    The issue had surfaced briefly in the 98th Congress, where proposals to
codify and expand the FCC's minority ownership policies were the subject of
extensive hearings in the House.  See Minority Participation in the Media:
Hearings before the Subcommittee on Telecommunications, Consumer
Protection, and Finance of the House Committee on Energy and Commerce, 98th
Cong., 1st Sess. (1983); Parity for Minorities in the Media: Hearing on H.
R. 1155 before the Subcommittee on Telecommunications, Consumer Protection,
and Finance of the House Committee on Energy and Commerce, 98th Cong., 1st
Sess. (1983); Broadcast Regulation and Station Ownership: Hearings on H. R.
6122 and H. R. 6134 before the Subcommittee on Telecommunications, Consumer
Protection, and Finance of the House Committee on Energy and Commerce, 98th
Cong., 2nd Sess. (1984).  No legislation was passed.

24
    See Notice of Inquiry on Racial Ethnic or Gender Classifications, 1 F.
C. C. Rcd 1315, 1319 (1986), as amended, 2 F. C. C. Rcd 2377 (1987).

25
    These bills recognized the link between minority ownership and
diversity.  In introducing S. 1095, for example, Senator Lautenberg
explained that "[d]iversity of ownership does promote diversity of views.
Minority . . . broadcasters serve a need that is not as well served as
others.  They address issues that others do not."  133 Cong. Rec. 9745
(1987); see also id., at 860 (H. R. 293); id., at 3300 (H. R. 1090); id.,
at 13742-13745 (S. 1277).

26
    See Commerce, Justice, State, the Judiciary, and Related Agencies
Appropriations for Fiscal Year 1988: Hearings on H. R. 2763 before a
Subcommittee of the Senate Committee on Appropriations, 100th Cong., 1st
Sess. (1987).

27
    See FCC Authorization: Hearing before the Subcommittee on
Communications of the Senate Committee on Commerce, Science, and
Transportation, 100th Cong., 1st Sess., 55 (1987); FCC and NTIA
Authorizations: Hearings on H. R. 2472 before the Subcommittee on
Telecommunications and Finance of the House Committee on Energy and
Commerce, 100th Cong., 1st Sess., 130-131, 211-212 (1987).

28
    See Broadcasting Improvements Act of 1987: Hearings on S. 1277 before
the Subcommittee on Communications of the Senate Committee on Commerce,
Science, and Transportation, 100th Cong., 1st Sess., 51 (1987).

29
    Congress did not simply direct a "kind of mental standstill," Winter
Park, 277 U. S. App. D. C., at 151, 873 F. 2d, at 364 (Williams, J.,
concurring in part dissenting in part), but rather in the appropriations
legislation expressed its unqualified support for the minority ownership
policies and instructed the Commission in no uncertain terms that in
Congress's view there was no need to study the topic further.
Appropriations acts, like any other laws, are binding because they are
"passe[d] [by] both Houses and . . . signed by the President."  United
States v. Munoz-Flores, 495 U. S. ----, ---- (1990) (slip op., at 10); id.,
at ---- (Stevens, J., concurring in judgment) (slip op., at 1).  See also
United States v. Will, 449 U. S. 200, 222 (1980); United States v.
Dickerson, 310 U. S. 554, 555 (1940).

30
    See Departments of Commerce, Justice, and State, the Judiciary and
Related Agencies Appropriations Act, 1989, Pub. L. 100-459, 102 Stat. 2216;
Departments of Commerce, Justice, and State, the Judiciary and Related
Agencies Appropriations Act, 1990, Pub. L. 101-162, 103 Stat. 1020.

31
    For example, the Congressional Research Service (CRS) analyzed data
from some 8,720 FCC-licensed radio and TV stations and found a strong
correlation between minority ownership and diversity of programming.  See
CRS, Minority Broadcast Station Ownership and Broadcast Programming: Is
There a Nexus? (June 29, 1988).  While only 20 percent of stations with no
Afro-American ownership responded that they attempted to direct programming
at Afro-American audiences, 65 percent of stations with Afro-American
ownership reported that they did so.  See id., at 13.  Only 10 percent of
stations without Hispanic ownership stated that they targeted programming
at Hispanic audiences, while 59 percent of stations with Hispanic owners
said they did.  See id., at 13, 15.  The CRS concluded:

"[A]n argument can be made that FCC policies that enhanced minority . . .
station ownership may have resulted in more minority and other audience
targeted programming.  To the degree that increasing minority programming
across audience markets is considered adding to programming diversity,
then, based on the FCC survey data, an argument can be made that the FCC
preference policies contributed, in turn, to programming diversity."  Id.,
at cover page.
    Other surveys support the FCC's determination that there is a nexus
between ownership and programming.  A University of Wisconsin study found
that Afro-American-owned, Afro-American-oriented radio stations have more
diverse playlists than white-owned, Afro-American-oriented stations.  See
J. Jeter, A Comparative Analysis of the Programming Practices of
Black-Owned Black-Oriented Radio Stations and White-Owned Black-Oriented
Radio Stations 130, 139 (1981) (University of Wisconsin- Madison).  See
also M. Spitzer, Justifying Minority Preferences in Broadcasting,
California Institute of Technology Working Paper No. 718, pp. 19-29 (March
1990) (explaining why minority status of owner might affect programming
behavior).

32
    Fife, "The Impact of Minority Ownership on Minority Images in Local TV
News," in Communications: A Key to Economic and Political Change, Selected
Proceedings from the 15th Annual Howard University Communications
Conference 113 (1986) (survey of four Standard Metropolitan Statistical
Areas); see also M. Fife, The Impact of Minority Ownership on Broadcast
News Content: A Multi-Market Study 52 (June 1986) (report submitted to
National Association of Broadcasters).

33
    For example, a University of Massachusetts at Boston survey of 3,000
local Boston news stories found a statistically significant difference in
the treatment of events, depending on the race of ownership.  See K.
Johnson, Media Images of Boston's Black Community 16-29 (Jan. 28, 1987)
(William Monroe Trotter Institute, University of Massachusetts at Boston).
A comparison between an Afro-American-owned television station and a
white-owned station in Detroit concluded that "the overall mix of topic and
location coverage between the two stations is statistically different, and
with its higher use of blacks in newsmaker roles and its higher coverage of
issues of racial significance, [the Afro-American-owned station's] content
does represent a different perspective on news than [that of the
white-owned station]."  M. Fife, The Impact of Minority Ownership On
Broadcast Program Content: A Case Study of WGPR-TV's Local News Content,
Report to the National Association of Broadcasters, Office of Research and
Planning 45 (Sept. 1979).  See also R. Wolseley, The Black Press, U. S. A.
3-4, 11 (2d ed. 1990) (documenting importance of minority ownership).

34
    Afro-American-owned radio stations, for example, have hired Afro-
Americans in top management and other important job categories at far
higher rates than have white-owned stations, even those with Afro-
American-oriented formats.  The same has been true of Hispanic hiring at
Hispanic-owned stations, compared to Anglo-owned stations with Spanish-
language formats.  See Honig, Relationships Among EEO, Program Service, and
Minority Ownership in Broadcast Regulation, in Proceedings from the Tenth
Annual Telecommunications Policy Research Conference 88-89 (O. Gandy, P.
Espinoza, & J. Ordover eds. 1983).  As of September 1986, half of the 14
Afro-American or Hispanic general managers at TV stations in the United
States worked at minority-owned or controlled stations.  See National
Association of Broadcasters, Minority Broadcasting Facts 9-10, 55-57 (Sept.
1986).  In 1981, 13 of the 15 Spanish-language radio stations in the United
States owned by Hispanics also had a majority of Hispanics in management
positions, while only a third of Anglo-owned Spanish-language stations had
a majority of Hispanic managers, and 42 percent of the Anglo-owned
Spanish-language stations had no Hispanic managers at all.  See Schement &
Singleton, The Onus of Minority Ownership: FCC Policy and Spanish-Language
Radio, 31 J. Communication 78, 80-81 (1981).  See generally Johnson, supra,
at 5 ("Many observers agree that the single largest reason for the
networks' poor coverage of racial news is related to the racial makeup of
the networks' own staffs"); Wimmer, supra n. 2, at 426-427
("[M]inority-owned broadcast outlets tend to hire more minority employees.
. . .  A policy of minority ownership could, over time, lead to a growth in
minority employment, which has been shown to produce minority-responsive
programming") (footnotes omitted).

35
    See also Peters v. Kiff, 407 U. S. 493, 503-504 (1972) (opinion of
Marshall, J.) ("[W]e are unwilling to make the assumption that the
exclusion of Negroes has relevance only for issues involving race.  When
any large and identifiable segment of the community is excluded from jury
service, the effect is to remove from the jury room qualities of human
nature and varieties of human experience, the range of which is unknown and
perhaps unknowable.  It is not necessary to assume that the excluded group
will consistently vote as a class in order to conclude, as we do, that its
exclusion deprives the jury of a perspective on human events that may have
unsuspected importance in any case that may be presented").

36
    The Commission has eschewed direct federal control over discrete
programming decisions by radio and television stations.  See, e. g.,
Network Programming Inquiry, Report and Statement of Policy, 25 Fed. Reg.
7293 (1960) ("[W]hile the Commission may inquire of licensees what they
have done to determine the needs of the community they propose to serve,
the Commission may not impose upon them its private notions of what the
public ought to hear").  In order to ensure diversity by means of
administrative decree, the Commission would have been required to
familiarize itself with the needs of every community and to monitor the
broadcast content of every station.  Such a scheme likely would have
presented insurmountable practical difficulties, in light of the thousands
of broadcast outlets in the United States and the myriad local variations
in audience tastes and interests.  Even were such an ambitious policy of
central planning feasible, it would have raised "serious First Amendment
issues" if it denied a broadcaster the ability to "carry a particular
program or to publish his own views," if it risked "government censorship
of a particular program," or if it led to "the official government view
dominating public broadcasting."  Red Lion Broadcasting Co. v. FCC, 395 U.
S. 367, 396 (1969) cf. FCC v. Sanders Brothers Radio Station, 309 U. S.
470, 475 (1940).  The Commission, with the approval of this Court, has
therefore "avoid[ed] unnecessary restrictions on licensee discretion" and
has interpreted the Communications Act as "seek[ing] to preserve
journalistic discretion while promoting the interests of the listening
public."  FCC v. WNCN Listeners Guild, 450 U. S. 582, 596 (1981).

37
    One factor was the extent to which a station carried programs un
sponsored by commercial advertisers during hours "when the public is awake
and listening."  Blue Book 55-56.  The Commission believed that this would
expand diversity by permitting the broadcast of less popular programs that
would appeal to particular tastes and interests in the listening audience
that might otherwise go unserved.  See id., at 12.  Second, the Commission
called for local live programs to encourage local self- expression.  See
id., at 56.  Third, the Commission expected "progam[ming] devoted to the
discussion of public issues."  Ibid.  The final factor was the amount of
advertising aired by the licensee.  Ibid.

38
    The Commission also devised policies to guard against discrimination in
programming.  For example, it determined that "arbitrar[y] refus[al] to
present members of an ethnic group, or their views" in programming, or
refusal to present members of such groups "in integrated situations with
members of other groups," would constitute a ground for license nonrenewal.
Citizens Communications Center, 25 F. C. C. 2d 705, 707 (1970).

39
    In addition, the Commission developed non-entertainment guidelines,
which called for broadcasters to devote a certain percentage of their
programming to non-entertainment subjects such as news, public affairs,
public service announcements, and other topics.  See WNCN Listeners Guild,
supra, at 598-599, n. 41; Revision of Programming and Commercialization
Policies, Ascertainment Requirements, and Program Log Requirements for
Commercial Television Stations, 98 F. C. C. 2d 1076, 1078 (1984)
(hereinafter Deregulation of Television); Deregulation of Radio, 84 F. C.
C. 2d 968, 975 (1981).  Applicants proposing less than the guideline
amounts of nonentertainment programming could not have their applications
routinely processed by the Commission staff; rather, such applications were
brought to the attention of the Commission itself.

40
    The Commission recently eliminated its ascertainment policies for
commercial radio and television stations, together with its non
entertainment programming guidelines.  See Deregulation of Radio, supra, at
975-999, reconsideration denied, 87 F. C. C. 2d 797 (1981), rev'd on other
grounds sub nom. Office of Communication of the United Church of Christ v.
FCC, 228 U. S. App. D. C. 8, 707 F. 2d 1413 (1983); Deregulation of
Television, supra, at 1096-1101, reconsideration denied, 104 F. C. C. 2d
358 (1986), remanded on other grounds sub nom. Action for Children's
Television v. FCC, 261 U. S. App. D. C. 253, 821 F. 2d 741 (1987).  The
Commission found that the ascertainment rules imposed significant burdens
on licensees without producing corresponding benefits in terms of
responsiveness to community issues.  See 98 F. C. C. 2d, at 1098
("Ascertainment procedures . . . were intended as a means of ensuring that
licensees actively discovered the problems, needs and issues facing their
communities . . . .  Yet we have no evidence that these procedures have had
such an effect") (footnote omitted).

41
    Although the Commission has concluded that "the growth of traditional
broadcast facilities" and "the development of new electronic information
technologies" have rendered "the fairness doctrine unnecessary," Report
Concerning the General Fairness Doctrine Obligations of Broadcast
Licensees, 102 F. C. C. 2d 143, 197 (1985); see post, at 16 (O'Connor, J.,
dissenting), the Commission has not made such a finding with respect to its
minority ownership policies.  To the contrary, the Commission has expressly
noted that its decision to abrogate the fairness doctrine does not in its
view call into question its "regulations designed to promote diversity."
Syracuse Peace Council (Reconsideration), 3 F. C. C. Rcd 2035, 2041, n. 56
(1988).

42
    Justice O'Connor offers few race-neutral alternatives to the policies
that the FCC has already employed and found wanting.  She insists that
"[t]he FCC could directly advance its interest by requiring licensees to
provide programming that the FCC believes would add to diversity."  Post,
at 21.  But the Commission's efforts to use the ascertainment program to
determine the programming needs of each community and the comparative
licensing procedure to provide licensees incentives to address their
programming to these needs met with failure.  A system of FCC-mandated
"diverse" programming would have suffered the same fate, while introducing
new problems as well.  See n. 36, supra.
    Justice O'Connor's proposal that "[t]he FCC . . . evaluate applicants
upon their ability to provide and commitment to offer whatever programming
the FCC believes would reflect underrepresented viewpoints," post, at 21,
similarly ignores the practical difficulties in determining the
"underrepresented viewpoints" of each community.  In addition, Justice
O'Connor's proposal is in tension with her own view of equal protection.
On the one hand, she criticizes the Commission for failing to develop
specific definitions of "minority viewpoints" so that it might implement
her suggestion.  Ibid.; see also id., at 27 (noting that the FCC has
declined to identify "any particular deficiency in the viewpoints contained
in the broadcast spectrum") (emphasis added).  On the other hand, she
implies that any such effort would violate equal protection principles,
which she interprets as prohibiting the FCC from "identifying what
constitutes a `Black viewpoint,' an `Asian viewpoint,' an `Arab viewpoint,'
and so on [and] determining which viewpoints are underrepresented."  Post,
at 14.  In this light, Justice O'Connor should perceive as a virtue rather
than a vice the FCC's decision to enhance broadcast diversity by means of
the minority ownership policies rather than by defining a specific "Black"
or "Asian" viewpoint.
    Justice O'Connor maintains that the FCC should have experimented with
"[r]ace-neutral financial and informational measures," post, at 22, in
order to promote minority ownership.  This suggestion is so vague that it
is difficult to evaluate.  In any case, both Congress, see supra, at 23
(describing minority financing fund that would have accompanied lottery
system), and the Commission considered steps to address directly financial
and informational barriers to minority ownership.  After the Minority
Ownership Task Force identified the requirement that licensees demonstrate
the availability of sufficient funds to construct and operate a station for
one year, see Ultravision Broadcasting, 1 F. C. C. 2d 544, 547 (1965), as
an obstacle to minority ownership, see Task Force Report, at 11-12, that
requirement was subsequently reduced to three months.  See Financial
Qualifications Standards, 72 F. C. C. 2d 784, 784 (1979) (television
applicants); Financial Qualifications for Aural Applicants, 69 F. C. C. 2d
407, 407-408 (1978) (radio applicants).  In addition, the Commission noted
that minority broadcasters are eligible for assistance from the Small
Business Administration and other federal agencies.  See Task Force Report,
at 17-22.  The Commission also disseminated information about potential
minority buyers of broadcast properties.  See, e. g., FCC EEO-Minority
Enterprise Division, Minority Ownership of Broadcast Facilities: A Report
8-9 (Dec. 1979).  Despite these race-neutral initiatives, the Commission
concluded in 1982 that the " `dearth of minority ownership' in the
telecommunications industry" remained a matter of "serious concern."
Commission Policy Regarding Advancement of Minority Ownership in
Broadcasting, 92 F.C.C. 2d 849, 852 (1982).
    The Commission has continued to employ race-neutral means of promoting
broadcast diversity.  For example, it has worked to expand the number of
broadcast outlets within workable technological limits, see, e. g.,
Implementation of BC Docket No. 80-90 To Increase Availability of FM
Broadcast Assignments, 100 F. C. C. 2d 1332 (1985), to develop strict
cross-ownership rules, see n. 16, supra, and to encourage issue-oriented
programming by recognizing a licensee's obligation to present programming
responsive to issues facing the community of license.  See, e. g.,
Deregulation of Television, 104 F. C. C. 2d, at 359; Deregulation of Radio,
84 F. C. C. 2d, at 982-983.  The Commission has nonetheless concluded that
these efforts cannot substitute for its minority ownership policies.  See,
e. g., id., at 977.

43
    Congress followed closely the Commission's efforts to increase
programming diversity, see supra, at 21-28, including the development of
the ascertainment policy.  See, e. g., S. Rep. No. 93-1190, pp. 6-7 (1974);
Broadcast License Renewal Act: Hearings on S. 16 et al. before the
Subcommittee on Communications of the Senate Committee on Commerce, 93d
Cong., 2d Sess., pt. 1, p. 63 (1974) (testimony of Sen. Scott); id., at 65
(testimony of Rep. Brown).  Congress heard testimony from the chief of the
Commission's Mass Media Bureau that the ascertainment rules were "seriously
flawed" because they "became highly ritualistic and created unproductive
unseemly squabbling over administrative trivia."  Broadcast Regulation and
Station Ownership: Hearings on H. R. 6122 and H. R. 6134 before the
Subcommittee on Telecommunications, Consumer Protection, and Finance of the
House Committee on Energy and Commerce, 98th Cong., 2d Sess., 165 (1984).
Other witnesses testified that the minority ownership policies were adopted
"only after specific findings by the Commission that ascertainment
policies, and equal opportunity rules fell far short of increasing minority
participation in programming and ownership."  Minority Ownership of
Broadcast Stations: Hearing before the Subcommittee on Communications of
the Senate Committee on Commerce, Science, and Transportation, 101st Cong.,
1st Sess., p. 157 (1989) (testimony of J. Clay Smith, Jr., National Bar
Association).  In enacting the lottery statute, Congress explained the
"current comparative hearing process" had failed to produce adequate
programming diversity and that "[t]he policy of encouraging diversity of
information sources is best served . . . by assuring that minority and
ethnic groups that have been unable to acquire any significant degree of
media ownership are provided an increased opportunity to do so."  H. R.
Conf. Rep. No. 97-765, pp. 43-44 (1982).  Only in this way would "the
American public [gain] access to a wider diversity of information sources."
Id., at 45.

44
    The proposal was withdrawn after vociferous opposition from
broadcasters, who maintained that a notice requirement "would create a
burden on stations by causing a significant delay in the time it presently
takes to sell a station" and that it might require the disclosure of
confidential financial information.  43 Fed. Reg. 24561 (1978).

45
    See Public Papers of the Presidents, supra n. 4, at 253; Petition for
Issuance of Policy Statement or Notice of Inquiry by National
Telecommunications and Information Administration, 69 F. C. C. 2d 1591,
1593 (1978).  The petition advanced such proposals as a blanket exemption
for minorities from certain then-existing Commission policies, such as a
rule restricting assignments of stations by owners who had held their
stations for less than three years, see 47 CFR MDRV 1.597 (1978); multiple
ownership regulations that precluded an owner from holding more than one
broadcast facility in a given service that overlapped with another's
signal, see id., 15 73.35, 73.240, and 73.636; and the "Top 50" policy,
which required a showing of compelling public interest before the same
owner was allowed to acquire a third VHF or fourth (either VHF or UHF)
television station in the 50 largest television markets.  The Commission
rejected these proposals, on the ground that while minorities might qualify
for waivers on a case- by-case basis, a blanket exception for minorities
"would be inappropriate."  69 F. C. C. 2d, at 1597.

46
    As of mid-1973, licenses for 66.6 percent of the commercial television
stations--and 91.4 percent of the VHF stations--that existed in mid-1989
had already been awarded.  68.5 percent of the AM and FM radio station
licenses authorized by the FCC as of mid-1989 had already been issued by
mid-1973, including 85 percent of the AM stations.  See Brief for Capital
Cities/ABC, Inc., as Amicus Curiae in No. 89-453, p. 11, n. 19.  See also
n. 2, supra; Honig, The FCC and Its Fluctuating Commitment to Minority
Ownership of Broadcast Facilities, 27 How. L. J. 859, 875, n. 87 (1984)
(reporting 1980 statistics that Afro-Americans "tended to own the least
desirable AM properties"--those with the lowest power and highest
frequencies, and hence those with the smallest areas of coverage).

47
    See, e. g., Minority Ownership of Broadcast Stations: Hearing Before
the Subcommittee on Communications of the Senate Committee on Commerce,
Science, and Transportation, 101st Cong., 1st Sess. (1989).  See also
supra, at 27-28.

48
    As in Fullilove v. Klutznick, 448 U. S. 448 (1980), the FCC minority
preferences are subject to "administrative scrutiny to identify and
eliminate from participation" those applicants who are not bona fide.  Id.,
at 487-488.  See Formulation of Policies and Rules Relating to Broadcast
Renewal Applicants, Competing Applicants and Other Participants to
Comparative Renewal Process and to Prevention of Abuses of the Renewal
Process, 3 F. C. C. Rcd 5179 (1988).  The FCC's Review Board, in
supervising the comparative hearing process, seeks to detect sham
integration credits claimed by all applicants, including minorities.  See,
e. g., Silver Springs Communications, 5 F. C. C. Rcd 469, 479 (1990);
Metroplex Communications, Inc., 4 F. C. C. Rcd 8149, 8149-8150, 8159-8160
(1989); Northampton Media Associates, 3 F. C. C. Rcd 5164, 5170-5171 (Rev.
Bd. 1988); Washoe Shoshone Broadcasting, 3 F. C. C. Rcd 3948, 3955 (Rev.
Bd. 1988); Mulkey, 3 F. C. C. Rcd 590, 590-593 (Rev. Bd. 1988), modified, 4
F. C. C. Rcd 5520, 5520-5521 (1989); Newton Television Limited, 3 F. C. C.
Rcd 553, 558-559, n. 2 (Rev. Bd. 1988); Magdelene Gunden Partnership, 3 F.
C. C. Rcd 488, 488-489 (Rev. Bd. 1988); Tulsa Broadcasting Group, 2 F. C.
C. Rcd 6124, 6129-6130 (Rev. Bd. 1987); Pacific Television, Ltd., 2 F. C.
C. Rcd 1101, 1102-1104 (Rev. Bd. 1987), review denied, 3 F. C. C. Rcd 1700
(1988); Payne Communications, Inc., 1 F. C. C. Rcd 1052, 1054-1057 (Rev.
Bd. 1986); N. E. O. Broadcasting Co., 103 F. C. C. 2d 1031, 1033 (Rev. Bd.
1986); Hispanic Owners, Inc., 99 F. C. C. 2d 1180, 1190-1191 (Rev. Bd.
1985); KIST Corp., 99 F. C. C. 2d 173, 186-190 (Rev. Bd. 1984), aff'd as
modified, 102 F. C. C. 2d 288, 292-293, and n. 11 (1985), aff'd sub nom.
United American Telecasters, Inc. v. FCC, 255 U. S. App. D. C. 379, 801 F.
2d 1436 (1986).
    As evidenced by respondent Shurberg's own unsuccessful attack on the
credentials of Astroline, see 278 U. S. App. D. C., at 31, 876 F. 2d, at
906, the FCC also entertains challenges to the bona fide nature of distress
sale participants.  See 1982 Policy Statement, 92 F. C. C. 2d, at 855.

49
    Minority broadcasters, both those who obtain their licenses by means of
the minority ownership policies and those who do not, are not stigmatized
as inferior by the Commission's programs.  Audiences do not know a
broadcaster's race and have no reason to speculate about how he or she
obtained a license; each broadcaster is judged on the merits of his or her
programming.  Furthermore, minority licensees must satisfy otherwise
applicable FCC qualifications requirements.  Cf. Fullilove, 448 U. S., at
521 (Marshall, J., concurring in judgment).

50
    Petitioner Metro contends that, in practice, the minority enhancement
credit is not part of a multifactor comparison of applicants but rather
amounts to a per se preference for a minority applicant in a comparative
licensing proceeding.  But experience has shown that minority ownership
does not guarantee that an applicant will prevail.  See, e. g., Radio
Jonesboro, Inc., 100 F. C. C. 2d 941, 945-946 (1985); Lamprecht, 99 F. C.
C. 2d 1219, 1223 (Rev. Bd. 1985), review denied, 3 F. C. C. Rcd 2527
(1988), appeal pending, Lamprecht v. FCC, No. 88-1395 (CADC); Horne
Industries, Inc., 98 F. C. C. 2d 601, 603 (1984); Vacationland Broadcasting
Co., 97 F. C. C. 2d 485, 514-517 (Rev. Bd. 1984), modified, 58 Radio Reg.
2d (P&F) 439 (1985); Las Misiones de Bejar Television Co., 93 F. C. C. 2d
191, 195 (Rev. Bd. 1983), review denied, FCC 84-97 (May 16, 1984); Waters
Broadcasting Corp., 88 F. C. C. 2d 1204, 1211-1212 (Rev. Bd. 1981).
    In many cases cited by Metro, even when the minority applicant
prevailed, the enhancement for minority status was not the dispositive
factor in the Commission's decision to award the license.  See, e. g.,
Silver Springs Communications, Inc., 5 F. C. C. Rcd 469, 479 (ALJ 1990);
Richardson Broadcasting Group, 4 F. C. C. Rcd 7989, 7999 (ALJ 1989); Pueblo
Radio Broadcasting Service, 4 F. C. C. Rcd 7802, 7812 (ALJ 1989);
Poughkeepsie Broadcasting Limited Partnership, 4 F. C. C. Rcd 6543, 6551,
and n. 4 (ALJ 1989); Barden, 4 F. C. C. Rcd 7043, 7045 (ALJ 1989); Perry
Television, Inc., 4 F. C. C. Rcd 4603, 4618, 4620 (ALJ 1989); Corydon
Broadcasting, Ltd., 4 F. C. C. Rcd 1537, 1539 (ALJ 1989), remanded, Order
of Dec. 6, 1989 (Rev. Bd.); Breaux Bridge Broadcasters Limited Partnership,
4 F. C. C. Rcd 581, 585 (ALJ 1989); Key Broadcasting Corp., 3 F. C. C. Rcd
6587, 6600 (ALJ 1988); 62 Broadcasting, Inc., 3 F. C. C. Rcd 4429, 4450
(ALJ 1988), aff'd, 4 F. C. C. Rcd 1768, 1774 (Rev. Bd. 1989), review
denied, FCC 90-48 (Feb. 13, 1990); Gali Communications, Inc., 2 F. C. C.
Rcd 6967, 6994 (ALJ 1987); Bogner Newton Corp., 2 F. C. C. Rcd 4792, 4805
(ALJ 1987); Garcia, 2 F. C. C. Rcd 4166, 4168, n. 1 (ALJ 1987), aff'd, 3 F.
C. C. Rcd 1065 (Rev. Bd.), review denied, 3 F. C. C. Rcd 4767 (1988);
Magdalene Gunden Partnership, 2 F. C. C. Rcd 1223, 1238 (ALJ 1987), aff'd,
2 F. C. C. Rcd 5513 (Rev. Bd. 1987), reconsideration denied, 3 F. C. C. Rcd
488 (Rev. Bd.), review denied, 3 F. C. C. Rcd 7186 (1988); Tulsa
Broadcasting Group, 2 F. C. C. Rcd 1149, 1162 (ALJ), aff'd, 2 F. C. C. Rcd
6124 (Rev. Bd. 1987), review denied, 3 F. C. C. Rcd 4541 (1988); Tomko, 2
F. C. C. Rcd 206, 209, n. 3 (ALJ 1987).

51
    Faith Center also held broadcast licenses for three California
stations, and in 1978, the FCC designated for a hearing Faith Center's
renewal application for its San Bernadino station because of allegations of
fraud in connection with over-the-air solicitation for funds and for
failure to cooperate with an FCC investigation.  Although respondent
Shurberg did not file a competing application prior to the Commission's
decision to designate for hearing Faith Center's renewal application for
its Hartford station, timely filed competing applications against two of
Faith Center's California stations prevented their transfer under the
distress sale policy.  See Faith Center, Inc., 89 F. C. C. 2d 1054 (1982),
and Faith Center, Inc., 90 F. C. C. 2d 519 (1982).
    Of course, a competitor may be unable to foresee that the FCC might
designate a license for a revocation or renewal hearing, and so might
neglect to file a competing application in timely fashion.  But it is
precisely in such circumstances that the minority distress sale policy
would least disrupt any of the competitor's settled expectations.  From the
competitor's perspective, it has been denied an opportunity only at a
windfall; it expected the current licensee to continue broadcasting
indefinitely and did not anticipate that the license would become
available.

52
    Even for troubled licensees, distress sales are relatively rare
phenomena; most stations presented with the possibility of license
revocation opt not to utilize the distress sale policy.  Many seek and are
granted special relief from the FCC enabling them to transfer the license
to another concern as part of a negotiated settlement with the Commission,
see Coalition for the Preservation of Hispanic Broadcasting v. FCC, ---- U.
S. App. D. C. ----, ---- - ----, 893 F. 2d 1349, 1352-1353 (1990); bankrupt
licensees can effect a sale for the benefit of innocent creditors under the
"Second Thursday" doctrine, see Second Thursday Corp., 22 F. C. C. 2d 515,
520-521 (1970), reconsideration granted, 25 F. C. C. 2d 112, 113-115
(1970); Northwestern Indiana Broadcasting Corp. (WLTH), 65 F. C. C. 2d 66,
70-71 (1977); and still others elect to defend their practices at hearing.





Subject: 89-453 & 89-700--CONCUR, METRO BROADCASTING, INC. v. FCC

 


    SUPREME COURT OF THE UNITED STATES


Nos. 89-453 and 89-700


METRO BROADCASTING, INC., PETITIONER
v.
89-453
FEDERAL COMMUNICATIONS COMMISSION et al.

ASTROLINE COMMUNICATIONS COMPANY
LIMITED PARTNERSHIP, PETITIONER
v.
89-700
SHURBERG BROADCASTING OF HARTFORD,
INC., et al.


on writs of certiorari to the united states court of appeals for the
district of columbia circuit

[June 27, 1990]



    Justice Stevens, concurring.
    Today the Court squarely rejects the proposition that a governmental
decision that rests on a racial classification is never permissible except
as a remedy for a past wrong.  Ante, at 13.  I endorse this focus on the
future benefit, rather than the remedial justification, of such decisions.
{1}
    I remain convinced, of course, that racial or ethnic characteristics
provide a relevant basis for disparate treatment only in extremely rare
situations and that it is therefore "especially important that the reasons
for any such classification be clearly identified and unquestionably
legitimate."  Fullilove v. Klutznick, 448 U. S. 448, 534-535 (1980)
(dissenting opinion).  The Court's opinion explains how both elements of
that standard are satisfied.  Specifically, the reason for the
classification--the recognized interest in broadcast diversity--is clearly
identified and does not imply any judgment concerning the abilities of
owners of different races or the merits of different kinds of programming.
Neither the favored nor the disfavored class is stigmatized in any way. {2}
In addition, the Court demonstrates that this case falls within the
extremely narrow category of governmental decisions for which racial or
ethnic heritage may provide a rational basis for differential treatment.
{3}  The public interest in broadcast diversity--like the interest in an
integrated police force, {4} diversity in the composition of a public
school faculty  {5} or diversity in the student body of a professional
school  {6}--is in my view unquestionably legitimate.
    Therefore, I join both the opinion and the judgment of the Court.
 
 
 
 
 
 

------------------------------------------------------------------------------
1
    See City of Richmond v. J. A. Croson, Co., 488 U. S. 469, 511-513
(1989) (Stevens, J., concurring in part and concurring in judgment); Wygant
v. Jackson Board of Education, 476 U. S. 267, 313-315 (1986) (Stevens, J.,
dissenting).

2
    Cf. Croson, 488 U. S., at 516-517; Fullilove, 448 U. S., at 545, and n.
17.

3
    See Cleburne v. Cleburne Living Center, Inc., 473 U. S. 432, 452-454
(1985) (Stevens, J., concurring) (in examining the "rational basis" for a
classification, the "term `rational,' of course, includes a requirement
that an impartial lawmaker could logically believe that the classification
would serve a legitimate public purpose that transcends the harm to the
members of the disadvantaged class"); Michael M. v. Superior Court of
Sonoma County, 450 U. S. 464, 497, n. 4 (1981) (Stevens, J., dissenting)
(discussing the level of scrutiny appropriate in equal protection cases).

4
    See Wygant v. Jackson Board of Education, 476 U. S. 267, 314 (1986)
(Stevens, J., dissenting).

5
    See id., at 313-315.  See also Justice O'Connor's opinion concurring in
part and concurring in the judgment in this case, recognizing that the
"goal of providing `role models' discussed by the courts below should not
be confused with the very different goal of promoting racial diversity
among the faculty."  Id., at 288, n.

6
    See Justice Powell's opinion in Regents of University of California v.
Bakke, 438 U. S. 265, 311-319 (1978).





Subject: 89-453 & 89-700--DISSENT, METRO BROADCASTING, INC. v. FCC

 


    SUPREME COURT OF THE UNITED STATES


Nos. 89-453 and 89-700


METRO BROADCASTING, INC., PETITIONER
v.
89-453
FEDERAL COMMUNICATIONS COMMISSION et al.


ASTROLINE COMMUNICATIONS COMPANY
LIMITED PARTNERSHIP, PETITIONER
v.
89-700
SHURBERG BROADCASTING OF HARTFORD,
INC., et al.


on writs of certiorari to the united states court of appeals for the
district of columbia circuit

[June 27, 1990]



    Justice O'Connor, with whom The Chief Justice, Justice Scalia, and
Justice Kennedy join, dissenting.
    At the heart of the Constitution's guarantee of equal protection lies
the simple command that the Government must treat citizens "as individuals,
not `as simply components of a racial, religious, sexual or national
class.' "  Arizona Governing Committee v. Norris, 463 U. S. 1073, 1083
(1983).  Social scientists may debate how peoples' thoughts and behavior
reflect their background, but the Constitution provides that the Government
may not allocate benefits and burdens among individuals based on the the
assumption that race or ethnicity determines how they act or think.  To
uphold the challenged programs, the Court departs from these fundamental
principles and from our traditional requirement that racial classifications
are permissible only if necessary and narrowly tailored to achieve a
compelling interest.  This departure marks a renewed toleration of racial
classifications and a repudiation of our recent affirmation that the
Constitution's equal protection guarantees extend equally to all citizens.
The Court's application of a lessened equal protection standard to
congressional actions finds no support in our cases or in the Constitution.
I respectfully dissent.

I
    As we recognized last Term, the Constitution requires that the Court
apply a strict standard of scrutiny to evaluate racial classifications such
as those contained in the challenged FCC distress sale and comparative
licensing policies.  See Richmond v. J. A. Croson Co., 488 U. S. 469
(1989); see also Bolling v. Sharpe, 347 U. S. 497 (1954).  "Strict
scrutiny" requires that, to be upheld, racial classifications must be
determined to be necessary and narrowly tailored to achieve a compelling
state interest.  The Court abandons this traditional safeguard against
discrimination for a lower standard of review, and in practice applies a
standard like that applicable to routine legislation.  Yet the Government's
different treatment of citizens according to race is no routine concern.
This Court's precedents in no way justify the Court's marked departure from
our traditional treatment of race classifications and its conclusion that
different equal protection principles apply to these federal actions.
    In both the challenged policies, the FCC provides benefits to some
members of our society and denies benefits to others based on race or
ethnicity.  Except in the narrowest of circumstances, the Constitution bars
such racial classifications as a denial to particular individuals, of any
race or ethnicity, of "the equal protection of the laws."  U. S. Const.,
Amdt. 14, MDRV 1; cf. Croson, supra, at 493-494.  The dangers of such
classifications are clear.  They endorse race-based reasoning and the
conception of a Nation divided into racial blocs, thus contributing to an
escalation of racial hostility and conflict.  See Croson, supra, at
493-494; Korematsu v. United States, 323 U. S. 214, 240 (1944) (Murphy, J.,
dissenting) (upholding treatment of individual based on inference from race
is "to destroy the dignity of the individual and to encourage and open the
door to discriminatory actions against other minority groups in the
passions of tomorrow").  Such policies may embody stereotypes that treat
individuals as the product of their race, evaluating their thoughts and
efforts--their very worth as citizens--according to a criterion barred to
the Government by history and the Constitution.  Accord Mississippi
University for Women v. Hogan, 458 U. S. 718, 725-726 (1982).  Racial
classifications, whether providing benefits to or burdening particular
racial or ethnic groups, may stigmatize those groups singled out for
different treatment and may create considerable tension with the Nation's
widely shared commitment to evaluating individuals upon their individual
merit.  Cf. Regents of University of Calif. v. Bakke, 438 U. S. 265,
358-362 (1978) (opinion of Brennan, J.).  "Because 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
classifications be clearly identified and unquestionably legitimate."
Fullilove v. Klutznick, 448 U. S. 448, 533-535 (1980) (Stevens, J.,
dissenting) (footnotes omitted).
    The Constitution's guarantee of equal protection binds the Federal
Government as it does the States, and no lower level of scrutiny applies to
the Federal Government's use of race classifications.  In Bolling v.
Sharpe, supra, the companion case to Brown v. Board of Education, 347 U. S.
483 (1954), the Court held that equal protection principles embedded in the
Fifth Amendment's Due Process Clause prohibited the Federal Government from
maintaining racially segregated schools in the District of Columbia: "[I]t
would be unthinkable that the same Constitution would impose a lesser duty
on the Federal Government."  Id., at 500.  Consistent with this view, the
Court has repeatedly indicated that "the reach of the equal protection
guarantee of the Fifth Amendment is coextensive with that of the
Fourteenth."  United States v. Paradise, 480 U. S. 149, 166, n. 16 (1987)
(plurality opinion) (considering remedial race classification); id., at 196
(O'Connor, J., dissenting); see also, e. g., Buckley v. Valeo, 424 U. S. 1,
93 (1976); Weinberger v. Wiesenfeld, 420 U. S. 636, 638, n. 2. (1975).
    Nor does the congressional role in prolonging the FCC's policies
justify any lower level of scrutiny.  As with all instances of judicial
review of federal legislation, the Court does not lightly set aside the
considered judgment of a co ordinate branch.  Nonetheless, the respect due
a coordinate branch yields neither less vigilance in defense of equal
protection principles nor any corresponding diminution of the standard of
review.  In Weinberger v. Wiesenfeld, for example, the Court upheld a
widower's equal protection challenge to a provision of the Social Security
Act, found the assertedly benign congressional purpose to be illegitimate,
and noted that "[t]his Court's approach to Fifth Amendment equal protection
claims has always been precisely the same as to equal protection claims
under the Fourteenth Amendment."  420 U. S., at 638, n. 2.  The Court has
not varied its standard of review when entertaining other equal protection
challenges to congressional measures.  See, e. g., Heckler v. Mathews, 465
U. S. 728 (1984); Califano v. Webster, 430 U. S. 313 (1977) (per curiam);
Califano v. Goldfarb, 430 U. S. 199, 210-211 (1977) (traditional equal
protection standard applies despite deference to congressional benefit
determinations) (opinion of Brennan, J.); Buckley v. Valeo, supra, at 93;
Frontiero v. Richardson, 411 U. S. 677, 684-691 (1973) (opinion of Brennan,
J.).  And Bolling v. Sharpe, supra, itself involved extensive congressional
regulation of the segregated District of Columbia public schools.
    Congress has considerable latitude, presenting special concerns for
judicial review, when it exercises its "unique remedial powers . . . under
MDRV 5 of the Fourteenth Amendment," see Croson, supra, at 488 (opinion of
O'Connor, J.), but this case does not implicate those powers.  Section 5
empowers Congress to act respecting the States, and of course this case
concerns only the administration of federal programs by federal officials.
Section 5 provides to Congress the "power to enforce, by appropriate
legislation, the provisions of this article," which in part provides that
"[n]o State shall . . . deny to any person within its jurisdiction the
equal protec- tion of the laws."  U. S. Const. Amdt. 14, MDRV 1.
Reflecting the Fourteenth Amendment's "dramatic change in the balance
between congressional and state power over matters of race," Croson, 488 U.
S., at 490 (opinion of O'Connor, J.), that section provides to Congress a
particular, structural role in the oversight of certain of the States'
actions.  See id., at 488-491, 504; Hogan, supra, at 732 (MDRV 5 grants
power to enforce Amendment " `to secure equal protection of the laws
against State denial or invasion,' " quoting Ex parte Virginia, 100 U. S.
339, 346 (1880)); Fullilove, 448 U. S., at 476-478, 483-484.
    The Court asserts that Fullilove supports its novel appli cation of
intermediate scrutiny to "benign" race conscious measures adopted by
Congress.  Ante, at 13.  Three reasons defeat this claim.  First, Fullilove
concerned an exercise of Congress' powers under MDRV 5 of the Fourteenth
Amendment.  In Fullilove, the Court reviewed an act of Congress that had
required States to set aside a percentage of federal construction funds for
certain minority-owned businesses to remedy past discrimination in the
award of construction contracts.  Although the various opinions in
Fullilove referred to several sources of congressional authority, the
opinions make clear that it was MDRV 5 that led the Court to apply a dif
ferent form of review to the challenged program.  See, e. g., 448 U. S., at
483 ("[I]n no organ of government, state or federal, does there repose a
more comprehensive remedial power than in the Congress, expressly charged
by the Constitution with competence and authority to enforce equal pro
tection guarantees") (opinion of Burger, C. J., joined by White, J., and
Powell, J.); id., at 508-510, 516 (opinion of Powell, J.).  Last Term,
Croson resolved any doubt that might remain regarding this point.  In
Croson, we invalidated a local set-aside for minority contractors.  We
distinguished Fullilove, in which we upheld a similar set-aside enacted by
Congress, on the ground that in Fullilove "Congress was exercising its
powers under MDRV 5 of the Fourteenth Amendment."  Croson, 488 U. S., at
504 (opinion of the Court); id., at 490 (opinion of O'Connor, J., joined by
Rehnquist, C. J., and White, J.).  Croson indicated that the decision in
Fullilove turned on "the unique remedial powers of Congress under MDRV 5,"
id., at 488 (opinion of O'Connor, J.), and that the latitude afforded
Congress in identifying and redressing past discrimination rested on MDRV
5's "specific constitutional mandate to enforce the dictates of the
Fourteenth Amendment."  Id., at 490.  Justice Kennedy's concurrence in
Croson likewise provides the majority with no support, for it questioned
whether the Court should, as it had in Fullilove, afford any particular
latitude even to measures undertaken pursuant to MDRV 5.  See id., at 518.
    Second, Fullilove applies at most only to congressional measures that
seek to remedy identified past discrimination.  The Court upheld the
challenged measures in Fullilove only because Congress had identified
discrimination that had particularly affected the construction industry and
had carefully constructed corresponding remedial measures.  See Fulli love,
448 U. S., at 456-467, 480-489 (opinion of Burger, C. J.); id., at 498-499
(opinion of Powell, J.).  Fullilove in dicated that careful review was
essential to ensure that Congress acted solely for remedial rather than
other, illegitimate purposes.  See id., at 486-487 (opinion of Burger, C.
J.); id., at 498-499 (opinion of Powell, J.).  The FCC and Congress are
clearly not acting for any remedial purpose, see infra, at 10-11, and the
Court today expressly extends its standard to racial classifications that
are not remedial in any sense.  See ante, at 13.  This case does not
present "a considered decision of the Congress and the President,"
Fullilove, 448 U. S., at 473; see infra, at 27-28, nor does it present a
remedial effort or exercise of MDRV 5 powers.
    Finally, even if Fullilove applied outside a remedial exercise of
Congress' MDRV 5 power, it would not support today's adoption of the
intermediate standard of review proffered by Justice Marshall but rejected
in Fullilove.  Under his suggested standard, the Government's use of racial
classifications need only be " `substantially related to achievement' " of
important governmental interests.  Ante, at 14.  Although the Court
correctly observes that a majority did not apply strict scrutiny, six
Members of the Court rejected intermediate scrutiny in favor of some more
stringent form of review.  Three Members of the Court applied strict
scrutiny.  See 448 U. S., at 496 (Powell, J., concurring) (challenged
statute "employs a racial classification that is constitutionally pro
hibited unless it is necessary means of advancing a compelling governmental
interest"); id., at 498 ("means selected must be narrowly drawn").  Id., at
523 (Stewart, J., joined by Rehnquist, J., dissenting).  Chief Justice
Burger's opinion, joined by Justice White and Justice Powell, declined to
adopt a particular standard of review but indicated that the Court must
conduct "a most searching examination," Fulli love, 448 U. S., at 491, and
that courts must ensure that "any congressional program that employs racial
or ethnic criteria to accomplish the objective of remedying the present
effects of past discrimination is narrowly tailored to the achievement of
that goal."  Id., at 480.  Justice Stevens indicated that "[r]acial
classifications are simply too pernicious to permit any but the most exact
connection between justification and classification."  Id., at 537-538
(Stevens, J., dissenting).  Even Justice Marshall's opinion, joined by
Justice Brennan and Justice Blackmun, undermines the Court's course today:
that opinion expressly drew its lower standard of review from the plurality
opinion in Regents of University of Calif. v. Bakke, 438 U. S. 265 (1978),
a case that did not involve congressional action, and stated that the
appropriate standard of review for the congres- sional measure challenged
in Fullilove "is the same as that under the Fourteenth Amendment."  448 U.
S., at 517-518, n. 2 (internal quotation omitted).  And, of course, Fulli-
love preceded our determination in Croson that strict scrutiny applies to
preferences that favor members of minor- ity groups, including challenges
considered under the Fourteenth Amendment.
    The guarantee of equal protection extends to each citizen, regardless
of race: the Federal Government, like the States, may not "deny to any
person within its jurisdiction the equal protection of the laws."  As we
observed only last Term in Croson, "[a]bsent searching judicial inquiry
into the justification for such race-based measures, there is simply no way
of determining what classifications are `benign' or `remedial' and what
classifications are in fact motivated by illegitimate notions of racial
inferiority or simple racial politics."  Croson, 488 U. S., at 493; see
also id., at 500, 494 ("the standard of review under the Equal Protection
Clause is not dependent on the race of those burdened or benefited by a
particular classification").
    The Court's reliance on "benign racial classifications," ante, at 13,
is particularly troubling.  " `Benign' racial classification" is a
contradiction in terms.  Governmental distinctions among citizens based on
race or ethnicity, even in the rare circumstances permitted by our cases,
exact costs and carry with them substantial dangers.  To the person denied
an opportunity or right based on race, the classification is hardly benign.
The right to equal protection of the laws is a personal right, see Shelley
v. Kraemer, 334 U. S. 1, 22 (1948), securing to each individual an immunity
from treatment predicated simply on membership in a particular racial or
ethnic group.  The Court's emphasis on "benign racial classifications"
suggests confidence in its ability to distinguish good from harmful
governmental uses of racial criteria.  History should teach greater
humility.  Untethered to narrowly confined remedial notions, "benign"
carries with it no independent meaning, but reflects only acceptance of the
current generation's conclusion that a politically acceptable burden,
imposed on particular citizens on the basis of race, is reasonable.  The
Court provides no basis for determining when a racial classification fails
to be "benevolent."  By expressly distinguishing "benign" from remedial
race-conscious measures, the Court leaves the distinct possibility that any
racial measure found to be substantially related to an important
governmental objective is also, by definition, "benign."  See ante, at
13-14.  Depending on the preference of the moment, those racial
distinctions might be directed expressly or in practice at any racial or
ethnic group.  We are a Nation not of black and white alone, but one
teeming with divergent communities knitted together by various traditions
and carried forth, above all, by individuals.  Upon that basis, we are
governed by one Constitution, providing a single guarantee of equal
protection, one that extends equally to all citizens.
    This dispute regarding the appropriate standard of review may strike
some as a lawyers' quibble over words, but it is not.  The standard of
review establishes whether and when the Court and Constitution allow the
Government to employ racial classifications.  A lower standard signals that
the Government may resort to racial distinctions more readily.  The Court's
departure from our cases is disturbing enough, but more disturbing still is
the renewed toleration of racial classifications that its new standard of
review embodies.
II
    Our history reveals that the most blatant forms of discrimination have
been visited upon some members of the racial and ethnic groups identified
in the challenged programs.  Many have lacked the opportunity to share in
the Nation's wealth and to participate in its commercial enterprises.  It
is undisputed that minority participation in the broadcasting industry
falls markedly below the demographic representation of those groups, see,
e. g., Congressional Research Service, Minority Broadcast Station Ownership
and Broadcast Programming: Is There a Nexus?  42 (June 29, 1988) (minority
owners possess an interest in 13.3 percent of stations and a controlling
interest in 3.5 percent of stations), and this shortfall may be traced in
part to the discrimination and the patterns of exclusion that have widely
affected our society.  As a Nation we aspire to create a society untouched
by that history of exclusion, and to ensure that equality defines all
citizens' daily experience and opportunities as well as the protection
afforded to them under law.
    For these reasons, and despite the harms that may attend the
Government's use of racial classifications, we have repeatedly recognized
that the Government possesses a compelling interest in remedying the
effects of identified race discrimination.  We subject even racial
classifications claimed to be remedial to strict scrutiny, however, to
ensure that the Government in fact employs any race-conscious measures to
further this remedial interest and employs them only when, and no more
broadly than, the interest demands.  See, e. g., Croson, 488 U. S., at
493-495, 498-502; Wygant v. Jackson Bd. of Ed., 476 U. S. 267 (1986)
(plurality opinion).  The FCC or Congress may yet conclude after suitable
examination that narrowly tailored race-conscious measures are required to
remedy discrimination that may be identified in the allocation of
broadcasting licenses.  Such measures are clearly within the Government's
power.
    Yet it is equally clear that the policies challenged in these cases
were not designed as remedial measures and are in no sense narrowly
tailored to remedy identified discrimi nation.  The FCC appropriately
concedes that its policies embodied no remedial purpose, Tr. of Oral Arg.
40-42, and has disclaimed the possibility that discrimination infected the
allocation of licenses.  The congressional action at most simply endorsed a
policy designed to further the interest in achieving diverse programming.
Even if the appropriations measure could transform the purpose of the
challenged policies, its text reveals no remedial purpose, and the
accompanying legislative material confirms that Congress acted upon the
same diversity rationale that led the FCC to formulate the challenged
policies.  See S. Rep. No. 100-182, p. 76 (1987).  The Court refers to the
bare suggestion, contained in a report addressing different legislation
passed in 1982, that "past inequities" have led to "underrepresentation of
minorities in the media of mass communications, as it has adversely
affected their participation in other sectors of the economy as well."  H.
R. Conf. Rep. No. 97-765, p. 43 (1982); ante, at 15.  This statement
indicates nothing whatever about the purpose of the relevant appropriations
measures, identifies no discrimination in the broadcasting industry, and
would not sufficiently identify discrimination even if Congress were acting
pursuant to its MDRV 5 powers.  Cf. Fulli love, 448 U. S., at 456-467
(opinion of Burger, C. J.) (sur veying identification of discrimination
affecting contracting opportunities); id., at 502-506 (opinion of Powell,
J.).  The Court evaluates the policies only as measures designed to
increase programming diversity.  Ante, at 15-17.  I agree that the racial
classifications cannot be upheld as remedial measures.

III
    Under the appropriate standard, strict scrutiny, only a compelling
interest may support the Government's use of racial classifications.
Modern equal protection doctrine has recognized only one such interest:
remedying the effects of racial discrimination.  The interest in increasing
the diversity of broadcast viewpoints is clearly not a compelling interest.
It is simply too amorphous, too insubstantial, and too unrelated to any
legitimate basis for employing racial classi fications.  The Court does not
claim otherwise.  Rather, it employs its novel standard and claims that
this asserted interest need only be, and is, "important."  This conclusion
twice compounds the Court's initial error of reducing its level of scrutiny
of a racial classification.  First, it too casually extends the
justifications that might support racial classifi cations, beyond that of
remedying past discrimination.  We have recognized that racial
classifications are so harmful that "[u]nless they are strictly reserved
for remedial settings, they may in fact promote notions of racial
inferiority and lead to a politics of racial hostility."  Croson, supra, at
493.  As Chief Justice Burger warned in Fullilove, "The history of
governmental tolerance of practices using racial or ethnic criteria for the
purpose or with the effect of imposing an invidious discrimination must
alert us to the deleterious effects of even benign racial or ethnic
classifications when they stray from narrow remedial justifications."  448
U. S., at 486-487.  Second, it has initiated this departure by endorsing an
insubstantial interest, one that is certainly insufficiently weighty to
justify tolerance of the Government's distinctions among citizens based on
race and ethnicity.  This endorsement trivializes the constitutional
command to guard against such discrimination and has loosed a potentially
far-reaching principle disturbingly at odds with our traditional equal
protection doctrine.
    An interest capable of justifying race-conscious measures must be
sufficiently specific and verifiable, such that it supports only limited
and carefully defined uses of racial classi fications.  In Croson, we held
that an interest in remedy- ing societal discrimination cannot be
considered compelling.  See 488 U. S., at 505 (because the City of Richmond
had presented no evidence of identified discrimination, it had "failed to
demonstrate a compelling interest in apportioning public contracting
opportunities on the basis of race").  We determined that a "generalized
assertion" of past discrimination "has no logical stopping point" and would
support unconstrained uses of race classifications.  See id., at 498
(internal quotation omitted).  In Wygant, we rejected the asserted interest
in "providing minority role models for [a public school system's] minority
students, as an attempt to alleviate the effects of societal
discrimination," 476 U. S., at 274 (plurality opinion), because "[s]ocietal
discrimination, without more, is too amorphous a basis for imposing a
racially classified remedy" and would allow "remedies that are ageless in
their reach into the past, and timeless in their ability to affect the
future."  Id., at 276.  Both cases condemned those interests because they
would allow distribution of goods essentially according to the demographic
representation of particular racial and ethnic groups.  See Croson, 488 U.
S., at 498, 505-506, 507; Wygant, 476 U. S., at 276 (plurality opinion).
    The asserted interest in this case suffers from the same defects.  The
interest is certainly amorphous: the FCC and the majority of this Court
understandably do not suggest how one would define or measure a particular
viewpoint that might be associated with race, or even how one would assess
the diversity of broadcast viewpoints.  Like the vague assertion of
societal discrimination, a claim of insufficiently diverse broadcasting
viewpoints might be used to justify equally unconstrained racial
preferences, linked to nothing other than proportional representation of
various races.  And the interest would support indefinite use of racial
classifications, employed first to obtain the appropriate mixture of racial
views and then to ensure that the broadcasting spectrum continues to
reflect that mixture.  We cannot deem to be constitutionally adequate an
interest that would support measures that amount to the core constitutional
violation of "outright racial balancing."  Croson, supra, at 507.
    The asserted interest would justify discrimination against members of
any group found to contribute to an insufficiently diverse broadcasting
spectrum, including those groups currently favored.  In Wygant, we rejected
as insufficiently weighty the interest in achieving role models in public
schools, in part because that rationale could as readily be used to limit
the hiring of teachers who belonged to particular minority groups.  See
Wygant, supra, at 275-276 (plurality opinion).  The FCC's claimed interest
could similarly justify limitations on minority members' participation in
broadcasting.  It would be unwise to depend upon the Court's restriction of
its holding to "benign" measures to forestall this result.  Divorced from
any remedial purpose and otherwise undefined, "benign" means only what
shifting fashions and changing politics deem acceptable.  Members of any
racial or ethnic group, whether now preferred under the FCC's policies or
not, may find themselves politically out of fashion and subject to
disadvantageous but "benign" discrimination.
    Under the majority's holding, the FCC may also advance its asserted
interest in viewpoint diversity by identifying what constitutes a "Black
viewpoint," an "Asian viewpoint," an "Arab viewpoint," and so on;
determining which viewpoints are underrepresented; and then using that
determination to mandate particular programming or to deny licenses to
those deemed by virtue of their race or ethnicity less likely to present
the favored views.  Indeed, the FCC has, if taken at its word, essentially
pursued this course, albeit without making express its reasons for choosing
to favor particular groups or for concluding that the broadcasting spectrum
is insufficiently diverse.  See Statement of Policy on Minority Ownership
of Broadcasting Facilities, 68 F. C. C. 2d 979 (1978) (1978 Policy
Statement).
    We should not accept as adequate for equal protection purposes an
interest unrelated to race, yet capable of support- ing measures so
difficult to distinguish from proscribed discrimination.  The remedial
interest may support race classifications because that interest is
necessarily related to past racial discrimination; yet the interest in
diversity of viewpoints provides no legitimate, much less important, reason
to employ race classifications apart from generalizations impermissibly
equating race with thoughts and behavior.  And it will prove impossible to
distinguish naked preferences for members of particular races from
preferences for members of particular races because they possess certain
valued views: no matter what its purpose, the Government will be able to
claim that it has favored certain persons for their ability, stemming from
race, to contribute distinctive views or perspectives.
    Even considered as other than a justification for using race
classifications, the asserted interest in viewpoint diversity falls short
of being weighty enough.  The Court has recognized an interest in obtaining
diverse broadcasting viewpoints as a legitimate basis for the FCC, acting
pursuant to its "public interest" statutory mandate, to adopt limited
measures to increase the number of competing licensees and to encourage
licensees to present varied views on issues of public concern.  See, e. g.,
FCC v. National Citizens Committee for Broadcasting, 436 U. S. 775 (1978);
Red Lion Broadcasting Co. v. FCC, 395 U. S. 367 (1969); United States v.
Storer Broadcasting Co., 351 U. S. 192 (1956); Associated Press v. United
States, 326 U. S. 1 (1945); National Broadcasting Co. v. United States, 319
U. S. 190 (1943).  We have also concluded that these measures do not run
afoul of the First Amendment's usual prohibition of Government regulation
of the marketplace of ideas, in part because First Amendment concerns
support limited but inevitable Government regulation of the peculiarly
constrained broadcasting spectrum.  See, e. g., Red Lion, supra, at
389-390.  But the conclusion that measures adopted to further the interest
in diversity of broadcasting viewpoints are neither beyond the FCC's
statutory authority nor contrary to the First Amendment hardly establishes
the interest as important for equal protection purposes.
    The FCC's extension of the asserted interest in diversity of views in
this case presents, at the very least, an unsettled First Amendment issue.
The FCC has concluded that the American broadcasting public receives the
incorrect mix of ideas and claims to have adopted the challenged policies
to supplement programming content with a particular set of views.  Although
we have approved limited measures designed to increase information and
views generally, the Court has never upheld a broadcasting measure designed
to amplify a distinct set of views or the views of a particular class of
speakers.  Indeed, the Court has suggested that the First Amendment
prohibits allocating licenses to further such ends.  See National
Broadcasting Co. v. United States, supra, at 226 ("But Congress did not
authorize the Com mission to choose among [license] applicants on the basis
of their political, economic or social views, or upon any other capricious
basis.  If it did, or if the Commission by these Regulations proposed a
choice among applicants upon some such basis, the [First Amendment] issue
before us would be wholly different").  Even if an interest is determined
to be legitimate in one context, it does not suddenly become important
enough to justify distinctions based on race.

IV
    Our traditional equal protection doctrine requires, in addition to a
compelling state interest, that the Government's chosen means be necessary
to accomplish and narrowly tailored to further the asserted interest.  See
Wygant, 476 U. S., at 274 (plurality opinion); Palmore v. Sidoti, 466 U. S.
429, 432-433 (1984).  This element of strict scrutiny is designed to
"ensur[e] that the means chosen `fit' [the] com pelling goal so closely
that there is little or no possibility that the motive for the
classification was illegitimate racial prejudice or stereotype."  Croson,
488 U. S., at 493.  The chosen means, resting as they do on stereotyping
and so in directly furthering the asserted end, could not plausibly be
deemed narrowly tailored.  The Court instead finds the racial
classifications to be "substantially related" to achieving the Government's
interest, ante, at 17, a far less rigorous fit requirement.  The FCC's
policies fail even this requirement.

1
    The FCC claims to advance its asserted interest in di- verse viewpoints
by singling out race and ethnicity as peculiarly linked to distinct views
that require enhancement.  The FCC's choice to employ a racial criterion
embodies the related notions that a particular and distinct viewpoint
inheres in certain racial groups, and that a particular appli- cant, by
virtue of race or ethnicity alone, is more valued than other applicants
because "likely to provide [that] distinct perspective."  Brief for FCC in
No. 89-453, p. 17; see 1978 Policy Statement, 68 F. C. C. 2d, at 981
(policies seek "rep resentation of minority viewpoints in programming");
Brief for FCC in No. 89-700, p. 20 (current ownership structure creates
programming deficient in "minorities['] . . . tastes and viewpoints").  The
policies directly equate race with belief and behavior, for they establish
race as a necessary and sufficient condition of securing the preference.
The FCC's chosen means rest on the "premise that differences in race, or in
the color of a person's skin, reflect real differences that are relevant to
a person's right to share in the blessings of a free society.  [T]hat
premise is utterly irrational and repugnant to the principles of a free and
democratic society."  Wygant, supra, at 316 (Stevens, J., dissenting)
(internal quotation omitted; citation omitted).  The policies impermissibly
value individuals because they presume that persons think in a manner
associated with their race.  See Steele v. FCC, 248 U. S. App. D. C. 279,
285, 770 F. 2d 1192, 1198 (1985) (minority preference contrary to "one of
our most cherished constitutional and societal principles . . . that an
individual's tastes, beliefs, and abilities should be assessed on their own
merits rather than by categorizing that individual as a member of a racial
group presumed to think and behave in a particular way"), vacated, No.
84-1176 (Oct. 31, 1985), remanded (CADC, Oct. 9, 1986).
    The FCC assumes a particularly strong correlation of race and behavior.
The FCC justifies its conclusion that insufficiently diverse viewpoints are
broadcast by reference to the percentage of minority owned stations.  This
assumption is correct only to the extent that minority owned stations
provide the desired additional views, and that stations owned by
individuals not favored by the preferences cannot, or at least do not,
broadcast underrepresented programming.  Additionally, the FCC's focus on
ownership to improve programming assumes that preferences linked to race
are so strong that they will dictate the owner's behavior in operating the
station, overcoming the owner's personal inclinations and regard for the
market.  This strong link between race and behavior, especially when
mediated by market forces, is the assumption that Justice Powell rejected
in his discussion of health care service in Bakke.  See 438 U. S., at
310-311.  In that case, the state medical school argued that it could
prefer members of minority groups because they were more likely to serve
communities particularly needing medical care.  Justice Powell rejected
this rationale, concluding that the assumption was unsupported and that
such individual choices could not be presumed from ethnicity or race.
Ibid.    The majority addresses this point by arguing that the equation of
race with distinct views and behavior is not "impermissible" in this
particular case.  Ante, at 28.  Apart from placing undue faith in the
Government and courts' ability to distinguish "good" from "bad"
stereotypes, this rea soning repudiates essential equal protection
principles that prohibit racial generalizations.  The Court embraces the
FCC's reasoning that an applicant's race will likely indicate that the
applicant possesses a distinct perspective, but notes that the correlation
of race to behavior is "not a rigid assumption about how minority owners
will behave in every case."  Ante, at 27-28.  The corollary to this notion
is plain: individuals of unfavored racial and ethnic backgrounds are
unlikely to possess the unique experiences and background that contribute
to viewpoint diversity.  Both the reasoning and its corollary reveal but
disregard what is objectionable about a stereotype: the racial
generalization inevitably does not apply to certain individuals, and those
persons may legitimately claim that they have been judged according to
their race rather than upon a relevant criterion.  See Los Angeles Dept. of
Water and Power v. Manhart, 435 U. S. 702, 708 (1978) ("Even a true
generalization about the class is an insufficient reason for disqualifying
an individual to whom the generalization does not apply").  Similarly
disturbing is the majority's reasoning that different treatment on the
basis of race is permissible because efficacious "in the aggregate."  Ante,
at 28.  In Wiesenfeld, we rejected similar reasoning: "Obviously, the
notion that men are more likely than women to be the primary supporters of
their spouses and children is not entirely without empirical support.  But
such a gender- based generalization cannot suffice to justify the
denigration of the efforts of women who do work and whose earnings
contribute significantly to their families' support."  420 U. S., at 645
(citation omitted).  Similarly in this case, even if the Court's equation
of race and programming viewpoint has some empirical basis, equal
protection principles prohibit the Government from relying upon that basis
to employ racial classifications.  See Manhart, supra, at 709 ("Practices
that classify employees in terms of religion, race, or sex tend to preserve
traditional assumptions about groups rather than thoughtful scrutiny of
individuals").  This reliance on the "aggregate" and on probabilities
confirms that the Court has abandoned heightened scrutiny, which requires a
direct rather than approximate fit of means to ends.  We would not tolerate
the Government's claim that hiring persons of a particular race leads to
better service "in the aggregate," and we should not accept as legitimate
the FCC's claim in this case that members of certain races will provide
superior programming, even if "in the aggregate."  The Constitution's text,
our cases, and our Nation's history foreclose such premises.
2
    Moreover, the FCC's selective focus on viewpoints asso ciated with race
illustrates a particular tailoring difficulty.  The asserted interest is in
advancing the Nation's different "social, political, esthetic, moral, and
other ideas and experiences," Red Lion, 395 U. S., at 390, yet of all the
varied traditions and ideas shared among our citizens, the FCC has sought
to amplify only those particular views it identifies through the
classifications most suspect under equal protection doctrine.  Even if
distinct views could be associated with particular ethnic and racial
groups, focusing on this particular aspect of the Nation's views calls into
question the Government's genuine commitment to its asserted interest.  See
Bakke, 438 U. S., at 314 (opinion of Powell, J.) (race- conscious measures
might be employed to further diversity only if race were one of many
aspects of background sought and considered relevant to achieving a diverse
student body).
    Our equal protection doctrine governing intermediate review indicates
that the Government may not use race and ethnicity as "a `proxy for other,
more germane bases of classification.' "  Hogan, 458 U. S., at 726, quoting
Craig v. Boren, 429 U. S. 190, 198 (1976).  The FCC has used race as a
proxy for whatever views it believes to be underrepresented in the
broadcasting spectrum.  This reflexive or unthinking use of a suspect
classification is the hallmark of an unconstitutional policy.  See, e. g.,
Wengler v. Druggists Mutual Ins. Co., 446 U. S. 142, 151-152 (1980); Craig,
supra, at 198-199; Wiesenfeld, 420 U. S., at 643-645.  The ill fit of means
to end is manifest.  The policy is overinclusive: many members of a
particular racial or ethnic group will have no interest in advancing the
views the FCC believes to be underrepresented, or will find them utterly
foreign.  The policy is underinclusive: it awards no preference to
disfavored individuals who may be particularly well versed in and committed
to presenting those views.  The FCC has failed to implement a case- by-case
determination, and that failure is particularly unjustified when
individualized hearings already occur, as in the comparative licensing
process.  See Orr v. Orr, 440 U. S. 268, 281 (1979).  Even in the remedial
context, we have required that the Government adopt means to ensure that
the award of a particular preference advances the asserted interest.  In
Fullilove, even reviewing an exercise of MDRV 5 powers, the Court upheld
the challenged set-aside only because it contained a waiver provision that
ensured that the program served its remedial function in particular cases.
See Fulli love, 448 U. S., at 487-488 (opinion of Burger, C. J.); see also
Croson, 488 U. S., at 488-489 (opinion of O'Connor, J.).
    Moreover, the FCC's programs cannot survive even intermediate scrutiny
because race-neutral and untried means of directly accomplishing the
governmental interest are readily available.  The FCC could directly
advance its interest by requiring licensees to provide programming that the
FCC believes would add to diversity.  The interest the FCC asserts is in
programming diversity, yet in adopting the challenged policies, the FCC
expressly disclaimed having attempted any direct efforts to achieve its
asserted goal.  See 1978 Policy Statement, 68 F. C. C. 2d, at 981; ante, at
33, n. 36.  The Court suggests that administrative convenience excuses this
failure, ibid., yet intermediate scrutiny bars the Government from relying
upon that excuse to avoid measures that directly further the asserted
interest.  See, e. g., Orr v. Orr, supra, at 281; Craig v. Boren, supra, at
198.  The FCC and the Court suggest that First Amendment interests in some
manner should exempt the FCC from employing this direct, race- neutral
means to achieve its asserted interest.  They essentially argue that we may
bend our equal protection principles to avoid more readily apparent harm to
our First Amendment values.  But the FCC cannot have it both ways: either
the First Amendment bars the FCC from seeking to ac complish indirectly
what it may not accomplish directly; or the FCC may pursue the goal, but
must do so in a manner that comports with equal protection principles.  And
if the FCC can direct programming in any fashion, it must employ that
direct means before resorting to indirect race-conscious means.
    Other race-neutral means also exist, and all are at least as direct as
the FCC's racial classifications.  The FCC could evaluate applicants upon
their ability to provide and com mitment to offer whatever programming the
FCC believes would reflect underrepresented viewpoints.  If the FCC truly
seeks diverse programming rather than allocation of goods to persons of
particular racial backgrounds, it has little excuse to look to racial
background rather than programming to further the programming interest.
Additionally, if the FCC believes that certain persons by virtue of their
unique experiences will contribute as owners to more diverse broadcasting,
the FCC could simply favor applicants whose particular background indicates
that they will add to the diversity of programming, rather than rely solely
upon suspect classifications. Also, race-neutral means exist to allow
access to the broadcasting industry for those persons excluded for
financial and related reasons.  The Court reasons that various minority
preferences, including those reflected in the distress sale, overcome
barriers of information, experience, and financing that inhibit minority
ownership.  Ante, at 42-43.  Race-neutral financial and informational
measures most directly reduce financial and informational barriers.
    The FCC could develop an effective ascertainment policy, one
guaranteeing programming that reflects underrepresented viewpoints.  The
Court's discussion of alternatives nearly exclusively focuses on the FCC's
ascertainment policy.  Ante, at 35-38.  Yet that policy applied only to
existing licensees, addressed not viewpoints but issues of concern to often
relatively homogeneous local communities, and, by the FCC's own admission,
was toothless and ineffective.  According to the FCC, the ascertainment
policies altered programming little more than the market already did, and
provided "no guarantee that once a concern is ascertained by formal or
informal means, programming responsive to that concern will be presented."
Commercial TV Stations, 98 F. C. C. 2d 1076, 1098 (1984), recon. denied,
104 F. C. C. 2d 358 (1986), remanded on other grounds sub nom. Action for
Children's Television v. FCC, 261 U. S. App. D. C. 253, 821 F. 2d 741
(1987); see also id., at 1098-1101.  Unsurprisingly, the FCC has concluded
that this limited ascertainment policy has not proven to be effective, and
has eliminated it throughout most media.  See id., at 1097-1101; id., at
1099, and nn. 78-80 (surveying proceedings abandoning ascertainment
requirements).
    The FCC has posited a relative absence of "minority viewpoints," yet it
has never suggested what those views might be, or what other viewpoints
might be absent from the broadcasting spectrum.  It has never identified
any particular deficiency in programming diversity that should be the
subject of greater programming, or that necessitates racial classifi
cations.
    The FCC has never attempted to assess what alterna- tives to racial
classifications might prove effective.  The 1978 Policy Statement referred
to only two alternatives that the Commission had undertaken: a minority
hiring policy and the ascertainment policy.  68 F. C. C. 2d, at 979-980.
Relying on ownership statistics and cursory evaluations of what viewpoints
the broadcasting spectrum contained, the FCC asserted that insufficient
programming diversity existed and that racial classifications were
necessary.  68 F. C. C. 2d, at 980-981.  Not until 1986 did the FCC attempt
to determine the nature of the viewpoints that might be underrepresented or
to determine whether effective race-neutral measures might achieve the
FCC's asserted interest.  See, e. g., Notice of Inquiry on Racial, Ethnic,
or Gender Classifications, 1 F. C. C. Rcd 1315 (1986), modified, 2 F. C. C.
Rcd 2377 (1987).  The FCC solicited comment about a range of potential
race-neutral alternatives: it asked what race- neutral means might
effectively increase program diversity, whether it should require an
individualized showing of ability to contribute to program diversity,
whether the FCC should allow nonminority members to demonstrate their
ability to contribute to diverse programming, and whether the FCC should
select applicants based on demonstrated commitment to particular issues
rather than according to race.  See 1 F. C. C. Rcd, at 1318.  It was this
inquiry, of course, that the congressional appropriations measures halted.
See Continuing Appropriations Act for Fiscal Year 1988, Pub. L. 100-202,
101 Stat. 1329.  Thus the record is clear: the FCC has never determined
that it has any need to resort to racial classifications to achieve its
asserted interest, and it has employed race-conscious means before adopting
readily available race-neutral, alternative means.
    The FCC seeks to avoid the tailoring difficulties by focusing on
minority ownership rather than the asserted inter- est in diversity of
broadcast viewpoints.  The Constitution clearly prohibits allocating
valuable goods such as broadcast licenses simply on the basis of race.  See
Bakke, 438 U. S., at 307 (opinion of Powell, J.).  Yet the FCC refers to
the lack of minority ownership of stations to support the existence of a
lack of diversity of viewpoints, and has fitted its programs to increase
ownership.  See 1978 Policy Statement, 68 F. C. C. 2d 979 (1978);
Commission Policy Regarding Advancement of Minority Ownership in
Broadcasting, 92 F. C. C. 2d 849 (1982).  This repeated focus on ownership
supports the inference that the FCC seeks to allocate licenses based on
race, an impermissible end, rather than to increase diversity of
viewpoints, the asserted interest.  And this justification that links the
use of race preferences to minority ownership rather than to diversity of
viewpoints ensures that the FCC's programs, like that at issue in Croson,
"cannot be said to be narrowly tailored to any goal, except perhaps
outright racial balancing."  Croson, 488 U. S., at 507.

3
    Even apart from these tailoring defects in the FCC's policies, one
particular flaw underscores the Government's ill fit of means to end.  The
FCC's policies assume and rely upon the existence of a tightly bound
"nexus" between the owners' race and the resulting programming.  The
Court's lengthy discussion of this issue, ante, at 17-27, purports to
estab- lish only that some relation exists between owners' race and
programming: i. e., that the FCC's choice to focus on allo cation of
licenses is rationally related to the asserted end.  The Court
understandably makes no stronger claims, because the evidence provides no
support and because the requisite deference would so obviously abandon
heightened scrutiny.  For argument's sake, we can grant that the Court's
review of congressional hearings and social science studies establishes the
existence of some rational nexus.  But even assuming that to be true, the
Court's discussion does not begin to establish that the programs are
directly and substantially related to the interest in diverse programming.
That equal protection issue turns on the degree owners' race is related to
programming, rather than whether any relation exists.  To the extent that
the FCC cannot show the nexus to be nearly complete, that failure confirms
that the chosen means do not directly advance the asserted interest, that
the policies rest instead upon illegitimate stereotypes, and that
individualized determinations must replace the FCC's use of race as a proxy
for the desired programming.
    Three difficulties suggest that the nexus between owners' race and
programming is considerably less than substantial.  First, the market
shapes programming to a tremendous extent.  Members of minority groups who
own licenses might be thought, like other owners, to seek to broadcast
programs that will attract and retain audiences, rather than programs that
reflect the owner's tastes and preferences.  See Winter Park
Communications, Inc. v. FCC, 277 U. S. App. D. C. 134, 145-148, 873 F. 2d
347, 358-361 (1989) (case below) (Williams, J., concurring in part and
dissenting in part) (surveying evidence suggesting programming geared to
audience taste).  Second, station owners have only limited control over the
content of programming.  The distress sale pre sents a particularly acute
difficulty of this sort.  Unlike the comparative licensing program, the
distress sale policy provides preferences to minority owners who neither
intend nor desire to manage the station in any respect.  See ante, at 6-7;
Commission Policy Regarding Advancement of Minority Ownership in
Broadcasting, supra.  Whatever distinct programming may attend the race of
an owner actively involved in managing the station, an absentee owner would
have far less effect on programming.
    Third, the FCC had absolutely no factual basis for the nexus when it
adopted the policies and has since established none to support its
existence.  Until the mid-1970s, the FCC believed that its public interest
mandate and 1965 Policy Statement precluded it from awarding preference
based on race and ethnicity, and instead required applicants to demonstrate
particular entitlement to an advantage in a comparative hearing.  Policy
Statement on Comparative Broadcast Hearings, 1 F. C. C. 2d 393 (1965).
See, e. g., Mid-Florida Television Corp., 33 F. C. C. 2d 1 (Rev. Bd.),
review denied, 37 F. C. C. 2d 559 (1972), rev'd, TV 9, Inc. v. FCC, 161 U.
S. App. D. C. 349, 495 F. 2d 929 (1973), cert. denied, 419 U. S. 986
(1974).  The Court of Appeals for the District of Columbia rejected the
FCC's position on statutory grounds.  See TV 9, 161 U. S. App. D. C., at
356-358, 495 F. 2d, at 936-938.  The court rejected the FCC's arguments
that "the Communications Act, like the Constitution, is color-blind," and
that a race preference was incompatible with the FCC's governing statute.
Ibid.  Instead, based on nothing other than its conception of the public
interest, that court required that an applicant's membership in a minority
group be presumed to lead to greater diversity of programming.  Id., at
357-358, 495 F. 2d, at 937-938; see Garrett v. FCC, 168 U. S. App. D. C.
266, 272-273, 513 F. 2d 1056, 1062-1063 (1975).  Principally relying on the
panel's presumed nexus between race and programming, the FCC in its 1978
Policy Statement acquiesced and established the policies challenged in
these cases.  See 1978 Policy Statement, supra, at 981-982.  In the
mid-1980s, the FCC, prompted by this Court's decisions indicating that a
factual predicate must be established to support use of race
classifications, unanimously sought to examine whether, and to what extent,
any nexus existed between an owner's race and programming.  See Notice of
Inquiry on Racial, Ethnic, or Gender Classifications, 1 F. C. C. Rcd 1315
(1986), modified, 2 F. C. C. Rcd 2377 (1987).  As the Chairman of the FCC
explained to Congress:

    "To the extent that heightened scrutiny requires certain factual
predicates, we discovered notwithstanding our statements in the past
regarding the assumed nexus between minority or female ownership and
program diversity, a factual predicate has never been established.    "For
example, the Commission has at no time has examined whether there is a
nexus between a broadcaster owner's race or gender and program diversity,
either on a case-by-case basis or generically.  We had no reason to,
because the court in TV 9 told us we could, indeed must, assume such a
nexus."  Minority-Owned Broadcast Stations, Hearing on H. R. 5373 before
the Subcommittee on Telecommunications, Consumer Protection, and Finance of
the House Comm. on Energy and Commerce, 98th Cong., 2d Sess., 16 (1986).


Through the appropriations measures, Congress barred the FCC's attempt to
initiate that examination.  See Continuing Appropriations Act for Fiscal
Year 1988 101 Stat. 1329-31.
    Even apart from the limited nature of the Court's claims, little can be
discerned from the congressional action.  First, the Court's survey does
not purport to establish that the FCC or Congress has identified any
particular deficiency in the viewpoints contained in the broadcast
spectrum.  Second, no degree of congressional endorsement may transform the
equation of race with behavior and thoughts into a permissible basis of
governmental action.  Even the most express and lavishly documented
congressional declaration that members of certain races will as owners
produce distinct and superior programming would not allow the Government to
employ such reasoning to allocate benefits and burdens among citizens on
that basis.  Third, we should hesitate before accepting as definitive any
declaration regarding even the existence of a nexus.  The two legislative
reports that claim some nexus to exist refer to sources that provide no
support for the proposition.  See S. Rep. No. 100-182, p. 76 (1987); H. R.
Conf. Rep. No. 97-765 p. 43 (1982).  Congress through appropriations
measures sought to foreclose examination of an issue that the FCC believed
to be entirely unresolved.  See Continuing Appropriations Act for Fiscal
Year 1988, supra.  Especially where Congress rejects the considered
judgment of the executive officials possessing particular expertise
regarding the matter in issue, courts are hardly bound to accept the
congressional declaration.  See, e. g., Rostker v. Goldberg, 453 U. S. 57,
83-85 (1981) (White, J., dissenting).  Additionally, the FCC created the
challenged policies.  Congress has, through the appropriations process,
frozen those policies in place by preventing the FCC from reexamining or
altering them.  That congressional action does not amount to an endorsement
of the reasoning and empirical claims originally asserted and then
abandoned by the FCC, and does not reflect the same considered judgment
embodied in measures crafted through the legislative process and subject to
the hearings and deliberation accompanying substantive legislation.  Cf.
TVA v. Hill, 437 U. S. 153 (1978); Andrus v. Sierra Club, 442 U. S. 347,
359-361 (1979).
4
    Finally, the Government cannot employ race classifications that unduly
burden individuals who are not members of the favored racial and ethnic
groups.  See, e. g., Wygant, 476 U. S., at 280-281 (plurality opinion).
The challenged policies fail this independent requirement, as well as the
other constitutional requirements.  The comparative licensing and distress
sale programs provide the eventual licensee with an exceptionally valuable
property and with a rare and unique opportunity to serve the local
community.  The distress sale imposes a particularly significant burden.
The FCC has at base created a specialized market reserved exclusively for
minority controlled applicants.  There is no more rigid quota than a 100%
set-aside.  This fact is not altered by the observation, see ante, at 48,
that the FCC and seller have some discretion over whether stations may be
sold through the distress program.  For the would-be purchaser or person
who seeks to compete for the station, that opportunity depends entirely
upon race or ethnicity.  The Court's argument that the distress sale
allocates only a small percentage of all license sales, ante, at 48-49,
also misses the mark.  This argument readily supports complete preferences
and avoids scrutiny of particular programs: it is no response to a person
denied admission at one school, or discharged from one job, solely on the
basis of race, that other schools or employers do not discriminate.
    The comparative licensing program, too, imposes a sig nificant burden.
The Court's emphasis on the multifactor process should not be confused with
the claim that the preference is in some sense a minor one.  It is not.
The basic nonrace criteria are not difficult to meet, and, given the sums
at stake, applicants have every incentive to structure their ownership
arrangement to prevail in the comparative process.  Applicants cannot alter
their race, of course, and race is clearly the dispositive factor in a
substantial percentage of comparative proceedings.  Petitioner Metro
asserts that race is overwhelmingly the dispositive factor.  In reply, the
FCC admits that it has not assessed the operation of its own program, Brief
for FCC in No. 89-453, p. 39, and the Court notes only that "minority
ownership does not guarantee that an applicant will prevail."  Ante, at 47,
n. 50.

    . . . . .



    In sum, the Government has not met its burden even under the Court's
test that approves of racial classifications that are substantially related
to an important governmental ob jective.  Of course, the programs even more
clearly fail the strict scrutiny that should be applied.  The Court has
determined, in essence, that Congress and all federal agencies are
exempted, to some ill-defined but significant degree, from the
Constitution's equal protection requirements.  This break with our
precedents greatly undermines equal protection guarantees, and permits
distinctions among citizens based on race and ethnicity which the
Constitution clearly forbids.  I respectfully dissent.

------------------------------------------------------------------------------




Subject: 89-453 & 89-700--DISSENT, METRO BROADCASTING, INC. v. FCC

 


    SUPREME COURT OF THE UNITED STATES


Nos. 89-453 and 89-700


METRO BROADCASTING, INC., PETITIONER
v.
89-453
FEDERAL COMMUNICATIONS COMMISSION et al.

ASTROLINE COMMUNICATIONS COMPANY
LIMITED PARTNERSHIP, PETITIONER
v.
89-700
SHURBERG BROADCASTING OF HARTFORD,
INC., et al.


on writs of certiorari to the united states court of appeals for the
district of columbia circuit

[June 27, 1990]



    Justice Kennedy, with whom Justice Scalia joins, dissenting.

    Almost 100 years ago in Plessy v. Ferguson, 163 U. S. 537 (1896), this
Court upheld a government-sponsored race- conscious measure, a Louisiana
law that required "equal but separate accommodations" for "white" and
"colored" railroad passengers.  The Court asked whether the measures were
"reasonable," and it stated that "[i]n determining the question of
reasonableness, [the legislature] is at liberty to act with reference to
the established usages, customs and traditions of the people, and with a
view to the promotion of their comfort."  Id., at 550.  The Plessy Court
concluded that the "race-conscious measures" it reviewed were reasonable
because they served the governmental interest of increasing the riding
pleasure of railroad passengers.  The fundamental errors in Plessy, its
standard of review and its validation of rank racial insult by the State,
distorted the law for six decades before the Court announced its apparent
demise in Brown v. Board of Education, 347 U. S. 483 (1954).  Plessy's
standard of review and its explication have disturbing parallels to today's
majority opinion that should warn us something is amiss here.
    Today the Court grants Congress latitude to employ "benign
race-conscious measures . . . [that] are not . . . designed to compensate
victims of past governmental or societal discrimination," but that "serve
important governmental objectives . . . and are substantially related to
achievement of those objectives."  Ante, at 13.  The interest the Court
accepts to uphold the Commission's race-conscious measures is "broadcast
diversity."  Furthering that interest, we are told, is worth the cost of
discriminating among citizens on the basis of race because it will increase
the listening pleasure of media audiences.  In upholding this preference,
the majority exhumes Plessy's deferential approach to racial
classifications.  The Court abandons even the broad societal remedial
justification for racial preferences once advocated by Justice Marshall, e.
g., Regents of University of California v. Bakke, 438 U. S. 265, 396 (1978)
(opinion of Marshall, J.), and now will allow the use of racial
classifications by Congress untied to any goal of addressing the effects of
past race discrimination.  All that need be shown under the new approach,
which until now only Justice Stevens had advanced, City of Richmond v. J.
A. Croson Co., 488 U. S. 469, ---- (Stevens, J., concurring in part and
concurring in judgment); Wygant v. Jackson Board of Education, 476 U. S.
267, 313 (1986) (Stevens, J., dissenting), is that the future effect of
discriminating among citizens on the basis of race will advance some
"important" governmental interest.
    Once the Government takes the step, which itself should be forbidden,
of enacting into law the stereotypical assumption that the race of owners
is linked to broadcast content, it follows a path that becomes ever more
tortuous.  It must decide which races to favor.  While the Court repeatedly
refers to the preferences as favoring "minorities," ante, at 3, and
purports to evaluate the burdens imposed on "nonminor ities," ante, at 45,
it must be emphasized that the discriminatory policies upheld today operate
to exclude the many racial and ethnic minorities that have not made the
Commission's list.  The enumeration of the races to be protected is
borrowed from a remedial statute, but since the remedial rationale must be
disavowed in order to sustain the policy, the race classifications bear
scant relation to the asserted governmental interest.  The Court's
reasoning provides little justification for welcoming the return of racial
classifications to our Nation's laws. {1}
    I cannot agree with the Court that the Constitution permits the
Government to discriminate among its citizens on the basis of race in order
to serve interests so trivial as "broadcast diversity."  In abandoning
strict scrutiny to endorse this interest the Court turns back the clock on
the level of scrutiny applicable to federal race-conscious measures.  Even
strict scrutiny may not have sufficed to invalidate early race based laws
of most doubtful validity, as we learned in Korematsu v. United States, 323
U. S. 214 (1944).  But the relaxed standard of review embraced today would
validate that case, and any number of future racial classifications the
Government may find useful.  Strict scrutiny is the surest test the Court
has yet devised for holding true to the constitutional command of racial
equality.  Under our modern precedents, as Justice O'Connor explains,
strict scrutiny must be applied to this statute.  The approach taken to
congressional measures under MDRV 5 of the Fourteenth Amendment in
Fullilove v. Klutznick, 448 U. S. 448 (1980), even assuming its validity,
see Croson, supra, at ---- (opinion of Kennedy, J.), is not applicable to
this case.
    As to other exercises of congressional power, our cases following
Bolling v. Sharpe, 347 U. S. 497 (1954), such as Weinberger v. Wiesenfeld,
420 U. S. 636, 638, n. 2 (1975), until they were in effect overruled today,
had held that the Congress is constrained in its actions by the same
standard applicable to the States: strict scrutiny of all racial
classifications.  The majority cannot achieve its goal of upholding the
quotas here under the rigor of this standard, and so must devise an
intermediate test.  Justice O'Connor demonstrates that this statute could
not survive even intermediate scrutiny as it had been understood until
today.  The majority simply says otherwise, providing little reasoning or
real attention to past cases in its opinion of 50 pages.
    The Court insists that the programs under review are "benign."  Justice
Stevens agrees.  "[T]he reason for the classification--the recognized
interest in broadcast diversity--is clearly identified and does not imply
any judgment concerning the abilities of owners of different races or the
merits of different kinds of programming.  Neither the favored nor the
disfavored class is stigmatized in any way."  Ante, at 2 (Stevens, J.,
concurring). {2}  A fundamental error of the Plessy Court was its similar
confidence in its ability to identify "benign" discrimination: "We consider
the underlying fallacy of the plaintiff's argument to consist in the
assumption that the enforced separation of the two races stamps the colored
race with a badge of inferiority.  If this be so, it is not by reason of
anything found in the act, but solely because the colored race chooses to
put that construction upon it."  163 U. S., at 551.  Although the majority
is "confident" that it can determine when racial discrimination is benign,
ante, at 13, n. 12, it offers no explanation as to how it will do so.
    The Court also justifies its result on the ground that "Congress and
the Commission have determined that there may be important differences
between the broadcasting practices of minority owners and those of their
nonminority counterparts."  Ante, at 29.  The Court is all too correct that
the the type of reasoning employed by the Commission and Congress is not
novel.  Policies of racial separation and preference are almost always
justified as benign, even when it is clear to any sensible observer that
they are not.  The following statement, for example, would fit well among
those offered to uphold the Commission's racial preference policy: "The
policy is not based on any concept of superiority or inferiority, but
merely on the fact that people differ, par ticularly in their group
associations, loyalties, cultures, outlook, modes of life and standards of
development."  See South Africa and the Rule of Law 37 (1968) (official
publication of the South African Government).
    The history of governmental reliance on race demonstrates that racial
policies defended as benign often are not seen that way by the individuals
affected by them.  Today's dismissive statements aside, a plan of the type
sustained here may impose "stigma on its supposed beneficiaries," Croson,
488 U. S., at 516-517 (opinion of Stevens, J.), and "foster intolerance and
antagonism against the entire membership of the favored classes,"
Fullilove, 448 U. S., at 547 (Stevens, J., dissenting).  Although the
majority disclaims it, the FCC policy seems based on the demeaning notion
that members of the defined racial groups ascribe to certain "minority
views" that must be different from those of other citizens.  Special
preferences also can foster the view that members of the favored groups are
inherently less able to compete on their own.  And, rightly or wrongly,
special preference programs often are perceived as targets for exploitation
by opportunists who seek to take advantage of monetary rewards without
advancing the stated policy of minority inclusion. {3}
    The perceptions of the excluded class must also be weighed, with
attention to the cardinal rule that our Constitution protects each citizen
as an individual, not as a member of a group.  There is the danger that the
"stereotypical thinking" that prompts policies such as the FCC rules here
"stigmatizes the disadvantaged class with the unproven charge of past
racial discrimination."  Croson, 488 U. S., at 516 (opinion of Stevens,
J.).  Whether or not such programs can be described as "remedial," the
message conveyed is that it is acceptable to harm a member of the group
excluded from the benefit or privilege.  If this is to be considered
acceptable under the Constitution, there are various possible explanations.
One is that the group disadvantaged by the preference should feel no stigma
at all, because racial preferences address not the evil of intentional
discrimination but the continuing unconscious use of stereotypes that
disadvantage minority groups.  But this is not a proposition that the many
citizens, who to their knowledge "have never discriminated against anyone
on the basis of race," ibid., will find easy to accept.
    Another explanation might be that the stigma imposed upon the excluded
class should be overlooked, either because past wrongs are so grievous that
the disfavored class must bear collective blame, or because individual
harms are simply irrelevant in the face of efforts to compensate for racial
inequalities.  But these are not premises that the Court even appears
willing to address in its analysis.  Until the Court is candid about the
existence of stigma imposed by racial preferences on both affected classes,
candid about the "animosity and discontent" they create, Fullilove, 448 U.
S., at 532-533 (Stevens, J., dissenting), and open about defending a theory
that explains why the cost of this stigma is worth bearing and why it can
consist with the Constitution, no basis can be shown for today's casual
abandonment of strict scrutiny.
    Though the racial composition of this Nation is far more diverse than
the first Justice Harlan foresaw, his warning in dissent is now all the
more apposite: "The destinies of the two races, in this country, are
indissolubly linked together, and the interests of both require that the
common government of all shall not permit the seeds of race hate to be
planted under the sanction of law."  Plessy, 163 U. S., at 560 (dissenting
opinion).  Perhaps the Court can succeed in its assumed role of
case-by-case arbiter of when it is desirable and benign for the Government
to disfavor some citizens and favor others based on the color of their
skin.  Perhaps the tolerance and decency to which our people aspire will
let the disfavored rise above hostility and the favored escape
condescension.  But history suggests much peril in this enterprise, and so
the Constitution forbids us to undertake it.  I regret that after a century
of judicial opinions we interpret the Constitution to do no more than move
us from "separate but equal" to "unequal but benign."
 
 
 
 
 
 

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1
    The Court fails to address the difficulties, both practical and
constitutional, with the task of defining members of racial groups that its
decision will require.  The Commission, for example, has found it necessary
to trace an applicant's family history to 1492 to conclude that the
applicant was "Hispanic" for purposes of a minority tax certificate policy.
See Storer Broadcasting Co., 87 F. C. C. 2d 190 (1981).  I agree that "the
very attempt to define with precision a beneficiary's qualifying racial
characteristics is repugnant to our constitutional ideals."  Fullilove v.
Klutznick, 448 U. S. 448, 534, n. 5 (1980) (Stevens, J., dissenting); see
id., at 531-532 (Stewart, J., dissenting).  "If the National Government is
to make a serious effort to define racial classes by criteria that can be
administered objectively, it must study precedents such as the First
Regulation to the Reichs Citizenship Law of November 14, 1935, translated
in 4 Nazi Conspiracy and Aggression, Document No. 1417-PS, pp. 8-9 (1946)."
Id., at 534, n. 5.  Other examples are available.  See Population
Registration Act No. 30 of 1950, Statutes of the Republic of South Africa
71 (1985).

2
    Justice Stevens' assertion that the FCC policy "does not imply any
judgment concerning . . . the merits of different kinds of programming,"
ante, at 2, is curious.  If this policy, which is explicitly aimed at the
ultimate goal of altering programming content, does not "imply any judgment
concerning . . . the merits of different kinds of programming," then it is
difficult to see how the FCC's policy serves any governmental interest, let
alone substantially furthers an important one.

3
    The record in one of these two cases indicates that Astroline
Communications Company, the beneficiary of the distress sale policy in this
case, had a total capitalization of approximately $24,000,000.  Its sole
minority principal was a Hispanic-American who held 21% of Astroline's
overall equity and 71% of its voting equity.  His total cash contribution
was $210.  See App. in No. 89-700, pp 68-69.
