ASTROLINE COMMUNICATIONS COMPANY LIMITED PARTNERSHIP, PETITIONER V.
SHURBERG BROADCASTING OF HARTFORD, INC., ET AL.

   No. 89-700

   In The Supreme Court Of The United States

   October Term, 1989

   On Writ Of Certiorari To The United States Court Of Appeals For The
District Of Columbia Circuit

   Brief For The United States As Amicus Curiae Supporting Respondent
Shurberg Broadcasting Of Hartford, Inc.

            TABLE OF CONTENTS
   Question presented
   Interest of the United States
   Statement
   Summary of argument
   Argument
      The Federal Communications Commission's
      minority distress sale policy, which permits certain
      licenses to be transferred minority-controlled
      firms, violates the equal protection component
      of the Fifth Amendment
         I. Classifications by the federal government on
            the basis of race may be sustained only if
            "narrowly tailored" to achieve a "compelling"
            interest
        II. The Federal Communication Commission's
            minority distress sale policy is not "narrowly
            tailored" to achieve a "compelling" interest
   Conclusion

                          QUESTION PRESENTED

   Whether the Federal Communications Commission's minority distress
sale policy, which permits certain licenses to be transferred only to
minority-controlled firms, violates the equal protection component of
the Fifth Amendment.

                     INTEREST OF THE UNITED STATES

   The United States is responsible for enforcing many statutes
prohibiting discrimination on the basis of race or national origin
(see, e.g., 42 U.S.C. 2000e-5(f)(1)), and may intervene in cases
brought under the Fourteenth Amendment (see, e.g., 42 U.S.C. 2000h-2).
 The United States filed extensive comments with the Federal
Communications Commission as part of the inquiry proceeding to
consider the validity of its minority preference policies, /1/ and has
recently filed a brief as amicus curiae in Metro Broadcasting, Inc. v.
FCC, No. 89-453, a case that involves the validity of one of those
policies.  /2/ In each of these submissions, the United States has
maintained that the Commission's policies could not withstand the
exacting scrutiny required by the Constitution and this Court's
decisions, and were thus invalid.  The United States adheres to that
position.  /3/

                               STATEMENT

   1. When a television or radio broadcast license has been designated
for a revocation hearing, or when a license renewal application has
been scheduled for a qualification hearing, the Federal Communications
Commission (FCC) generally prohibits the licensee from assigning or
transferring the license until the Commission determines whether the
licensee remains qualified to hold it.  See, e.g., Northland
Television, Inc., 42 Rad. Reg. 2d (P & F) 1107, 1110 (1978).  The
Commission's "distress sale" policy represents an exception to that
general rule, "developed initially as a way of avoiding time consuming
hearings when expeditious action to oust the licensee was desirable --
for example, when the licensee was bankrupt or disabled." Pet. App.
4a-5a;  see Cathryn Murphy, 42 F.C.C.2d 346 (1973);  La Rose v. FCC,
494 F.2d 1145 (D.C. Cir. 1974).

   As originally conceived and implemented, the FCC's distress sale
policy was race-neutral.  However, as a result of decisions of the
District of Columbia Circuit, see, e.g., TV 9, Inc. v. FCC, 495 F.2d
929 (1973), cert. denied, 419 U.S. 986 (1974);  Garrett v. FCC, 513
F.2d 1056 (1975), the FCC supplemented the original policy by adopting
a minority distress sale policy.  See Statement of Policy on Minority
Ownership of Broadcasting Facilities, 68 F.C.C.2d 979, 983 (1978)
(1978 Policy Statement);  Minority Ownership Taskforce, FCC, Minority
Ownership in Broadcasting 1-3, 8-12, 30-31 (1978) (Task Force Report).
 That policy permits licensees whose licenses have been designated for
a revocation hearing, or whose renewal applications have been
designated for a hearing on qualification issues, to transfer or
assign the license at a "distress sale" price, but only to applicants
who have a significant minority ownership interest and meet other
qualifications.  Id. at 983.  The Commission explained that the policy
was being adopted because "(f)ull minority participation in the
ownership and management of broadcast facilities results in more
diverse selection of programming * * * (, and) an increase in
ownership by minorities will inevitably enhance the diversity of
control of a limited resource, the (broadcast) spectrum." 1978 Policy
Statement, 68 F.C.C.2d at 981.  /4/

   For purposes of the distress sale policy, the Commission defined
"minorities" to include "those of Black, Hispanic Surnamed, American
Eskimo, Aleut, American Indian and Asiatic American extraction." 1978
Policy Statement, 68 F.C.C.2d at 980 n.8.  To be eligible to make a
distress sale purchase, an applicant must meet the Commission's basic
qualifications and have a minority ownership interest that exceeds 50%
or is controlling, except that an applicant organized as a limited
partnership will be deemed to be one with "significant minority
involvement" if there is a general partner who is a minority with a
20% interest in the partnership and who will exercise "complete
control over a station's affairs." See Commission Policy Regarding the
Advancement of Minority Ownership in Broadcasting, 92 F.C.C.2d 849,
853, 855 (1982).  To receive Commission approval, the distress sale
price must be no higher than 75% of the combined fair market value of
the station and license.  See Grayson Enterprises, Inc., 47 Rad. Reg.
2d (P & F) 287, 293 (1980).  /5/

   2. The FCC's proceedings at issue here involve the broadcast
license for Channel 18 (WHCT-TV), Hartford, Connecticut, held by Faith
Center, Inc.  After the Commission had designated Faith Center's
license renewal application for a hearing, Faith Center twice sought
and received the Commission's approval to make a distress sale.  See
Faith Center, Inc., 88 F.C.C.2d 788 (1981);  Faith Center, Inc., 54
Rad. Reg. 2d (P & F) 1286 (1983).  In each instance, however, Faith
Center was unable to close the transaction.  As a result, its renewal
application reverted to designated-for-hearing status.  Pet. App.
6a-8a, 116a-117a.

   In December 1983, respondent Alan Shurberg, the sole owner of
Shurberg Broadcasting Company of Hartford, Inc. (collectively
"Shurberg"), tendered an application to the FCC for a permit to build
a television station in Hartford, an application that was mutually
exclusive with Faith Center's pending renewal application for Channel
18.  In April 1984, Shurberg asked the Commission to designate that
application for a comparative hearing with Faith Center's pending
application.  In June, however, Faith Center once again sought the
Commission's approval to make a distress sale, this time requesting
permission to sell to petitioner Astroline Communications Company
Limited Partnership, a minority-controlled applicant.  Shurberg
opposed the distress sale on a number of grounds, including his
contention that the Commission's distress sale policy violated his
constitutional right to equal protection.  Pet. App. 8a-9a.

   In December 1984, the FCC approved Faith Center's application for
permission to assign its broadcast license to petitioner under the
distress sale program.  Pet. App. 113a-129a;  see Faith Center, Inc.,
99 F.C.C.2d 1164 (1984).  /6/ The Commission rejected Shurberg's
constitutional challenge to the minority distress sale program as
"without merit," citing the 1978 Policy Statement, the Task Force
Report, and decisions of the District of Columbia Circuit such as West
Michigan Broadcasting Co. v. FCC, 735 F.2d 601, 609-611 (1984), cert.
denied, 470 U.S. 1027 (1985), which have "repeatedly defined as an
important public interest objective the participation of heavily
underrepresented minorities in the ownership and operation of
broadcast stations." Pet. App. 123a.  Finally, the Commission
concluded that Congress, in requiring that the Commission incorporate
"significant preferences for minority applicants" into a random
lottery selection scheme for the award of licenses to conduct or
operate new stations, see 47 U.S.C. 309(i)(3)(A), has "reaffirmed the
importance of fostering minority ownership of broadcast stations."
Ibid.

   Shurberg then filed a petition for review of the Commission's order
in the District of Columbia Circuit.  /7/ Meanwhile, on January 23,
1985, Faith Center and petitioner closed the distress sale.
Petitioner bought the Channel 18 license and station assets for $3.1
million;  the fair market value of the license and station assets had
been appraised at $6,520,000.  See Pet. App. 11a, 30a n.17.

   3. In March 1989, a divided court of appeals reversed.  Pet. App.
1a-112a.  /8/ In a brief per curiam opinion, the panel majority held
that the Commission's minority distress sale 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." Id. at 2a.  The court accordingly
remanded the case to the Commission for further proceedings.  Judges
Silberman and MacKinnon, who comprised the panel majority, each filed
separate opinions concurring in the judgment.  See id. at 3a-52a
(Silberman, J.);  id. at 53a-69a (MacKinnon, J.).  /9/

   In Judge Silberman's view, the Commission sought to justify its
minority distress sale program "both as a means to foster diverse
programming and as a remedy for past discrimination." Pet. App. 25a.
Turning first to the latter justification, he stated that "(n)either
Congress nor the FCC ever found any evidence to link minority
'underrepresentation' to discrimination by the FCC or to particular
discriminatory practices in the broadcasting industry," id. at 27a,
and that, in any event, the Commission's program "does not conform to
the stricture of the Constitution because it is not narrowly tailored
to remedy past discrimination," id. at 29a.  With respect to the
programming diversity rationale, Judge Silberman rejected the
proposition that such an interest, in the context of this case, is
sufficiently compelling to support the race-based preference.  See id.
at 36a-41a.  He noted, among other things, that the Commission, in
recently abandoning the "fairness doctrine," had determined "that
there is no longer an inadequate diversity of viewpoints in television
programming." Id. at 40a.  Judge Silberman concluded that, in any
event, the Commission's distress sale policy was not narrowly tailored
to achieve that goal.  "As a means to promote diverse programming, the
distress sale policy rests on the questionable premise that minority
ownership will by itself lead to minority programming (or programming
that might be thought to have a minority perspective)." Id. at
41a-42a.

   Judge MacKinnon concurred in the judgment, concluding that the
Commission's minority distress sale program "does not satisfy the
'narrowly tailored' requirement of equal protection analysis." Pet.
App. 54a.  /10/ In his view, "the program is open-ended in that
circumstances may cause it to be applied to any broadcast licensee
without regard to any past discrimination." Id. at 61a.  Accordingly,
Judge MacKinnon concluded that the program "unduly burdens innocent
nonminorities." Id. at 66a.

   Chief Judge Wald dissented, concluding that the "majority's
invalidation of the Commission's ten-year old minority distress sale
program * * * impermissibly overturns a considered congressional
judgment as to the appropriate means of assuring diversity of
viewpoint over the national airwaves." Pet. App. 70a.  Chief Judge
Wald accepted as both reasonable and supported by congressional fact
finding the connection between minority ownership and diversity of
programming.  See id. at 92a-100a.  She also disputed the conclusion
that the Commission's program impermissibly burdens innocent
nonminorities, finding that "the very limited circumstances in which
the distress sale policy can be invoked, suggest that the burden the
policy places on nonminority applicants is acceptable." Id. at 109a.
/11/

                          SUMMARY OF ARGUMENT

   I. The FCC's policy classifies on the basis of race and is
therefore constitutionally suspect.  In City of Richmond v. J.A.
Croson Co., 109 S. Ct. 706 (1989), five Members of the Court concluded
that a state or local government's use of a racial classification is
subject to "strict scrutiny," that is, the racial classification must
be "narrowly tailored" to achieve a "compelling governmental
interest." In our view, a racial classification adopted by the federal
government, no less than a state or local government, should be
subject to the same exacting standard of review.  In deciding whether
a federal preference program is designed to achieve a compelling
governmental interest, a determination made by Congress that there is
a need for remedial race-conscious action should be entitled to
significant deference.  This additional measure of deference is
appropriate, however, only if Congress itself makes the critical
determination that such a program is required, and only if this
determination has a demonstrable basis in fact.  And any such racial
classification must be narrowly tailored to achieve the compelling
governmental interest identified by Congress.

   II. A. This Court has endorsed only one sufficiently compelling
justification for a racial classification:  remedying the effects of
identified present or past racial discrimination.  That justification,
however, may not be invoked to uphold the preference policy at issue.
First, Congress has not specifically mandated that the Commission
adopt or maintain the minority distress sale policy in order to remedy
prior discrimination.  Second, even if Congress could somehow be
viewed as having advanced a remedial justification, it cannot be said
that Congress had sufficient evidence before it of prior
discrimination in the broadcasting industry -- let alone in the
awarding of broadcast licenses -- to justify race-conscious relief.
Third, the FCC, the agency that authored the "policy" Congress has
frozen, has consistently taken the position that its policy is not
designed to remedy prior discrimination in the broadcasting industry.
And finally, the amorphous notion of prior "societal discrimination"
may not serve as an adequate substitute justification.

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

   B. The second asserted justification for the minority distress sale
policy is to further diversity of programming.  But this Court has
never held that such a quest for programming diversity is a
sufficiently compelling justification for the government's use of a
racial classification, and there is reason to question whether that
justification -- as applied to the public broadcasting spectrum --
would so qualify.  The idea that the government has a compelling
interest in promoting viewpoints identified with specific racial or
ethnic groups is deeply troubling, and appears to boil down to the
type of racial stereotyping that is anathema to basic constitutional
principles.

   Moreover, even if programming diversity could count as a compelling
governmental interest, neither Congress nor the FCC has established
the factual predicates necessary to support the use of racial
classifications to promote programming diversity.  The legislative
history shows at most that Congress relied on untested assumptions --
about the existence of distinct "minority" viewpoints, about whether
those viewpoints are underserved by today's broadcasting industry, and
about whether increasing minority ownership would translate into more
"minority" programming.  Nor does the administrative history of the
FCC's policy offer anything to shore up this inadequate factual
record.

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

   C. Finally, other novel justifications now advanced by the
Commission and certain amici in support of the distress sale policy
fare no better under the pertinent constitutional analysis.  Apart
from the fact that none of these new justifications has been expressly
invoked by Congress or previously relied upon by the FCC, each suffers
from many of the same analytical deficiencies as the remedial and
programming diversity theories.  And the continued search at this late
stage for an alternative rationale only reinforces the conclusion that
the Commission's minority preference policies -- inherently suspect
because they classify on the basis of race and ethnic background --
are policies in search of an adequate supporting justification.

                               ARGUMENT

   THE FEDERAL COMMUNICATIONS COMMISSION'S MINORITY DISTRESS SALE
POLICY, WHICH PERMITS CERTAIN LICENSES TO BE TRANSFERRED ONLY TO
MINORITY-CONTROLLED FIRMS, VIOLATES THE EQUAL PROTECTION COMPONENT OF
THE FIFTH AMENDMENT

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

   A. The federal policy at issue in this case provides a valuable
government benefit to applicants for broadcast licenses, but only if
they are Black, Hispanic, Oriental, Indian, Eskimo, or Aleutian.  It
plainly classifies on the basis of race and thus conflicts with the
fundamental principle embodied in the guarantee of equal protection
that skin color and ethnic origin are generally inappropriate bases
upon which to rest official distinctions between people.  Brown v.
Board of Educ., 347 U.S. 483, 493-495 (1954);  Bolling v. Sharpe, 347
U.S. 497, 499-500 (1954);  Strauder v. West Virginia, 100 U.S. 303,
307-308 (1880).

   In City of Richmond v. J.A. Croson Co., 109 S. Ct. 706 (1989), five
Members of the Court concluded that a state or local government's use
of a racial or ethnic classification is subject to "strict scrutiny,"
that is, the classification must be "narrowly tailored" to achieve a
"compelling governmental interest." Id. at 720-721 (1989) (opinion of
O'Connor, J., joined by Rehnquist, C.J., and White and Kennedy, JJ.);
id. at 735 (Scalia, J., concurring in the judgment).  The first part
of that constitutional analysis focuses on the asserted "compelling
governmental interest" supporting the questioned classification, and
involves two related inquiries:  identifying the interest and
determining whether it has a sufficient basis in fact.  A majority of
the Court has thus far endorsed only one justification for a racial
classification that may in appropriate circumstances be sufficiently
compelling:  the government's interest "in ameliorating, or
eliminating where feasible, the disabling effects of identified
discrimination," Regents of the University of Cal. v. Bakke, 438 U.S.
265, 307 (1978) (opinion of Powell, J.).  See Croson, 109 S. Ct. at
721-723 (plurality opinion);  id. at 743-745 (Marshall, J.,
dissenting);  Roberts v. United States Jaycees, 468 U.S. 609, 624-625
(1984);  see also Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 274
(1986) (plurality opinion).  /12/ The Court has also established that
there must be a "strong basis in evidence for (the government's)
conclusion that remedial action was necessary." Croson, 109 S. Ct. at
724 (opinion of the Court) (internal quotation marks and citation
omitted);  see also id. at 727;  Wygant, 476 U.S. at 277 (plurality
opinion);  id. at 286 (O'Connor, J., concurring in part and concurring
in the judgment).  In other words, "(b)ecause racial characteristics
so seldom provide a relevant basis for disparate treatment, and
because classifications based on race are potentially so harmful to
the entire body politic, it is especially important that the reasons
for any such classification be clearly identified and unquestionably
legitimate." Croson, 109 S. Ct. at 724 (opinion of the Court) (quoting
Fullilove v. Klutznick, 448 U.S. 448, 533-535 (1980) (Stevens, J.,
dissenting)).

   The second part of the constitutional analysis focuses on whether a
racial classification is "narrowly tailored" to promote the compelling
governmental interest.  In this regard, two factors were singled out
by a majority of the Court in Croson and are particularly significant:
 (1) whether alternative race-neutral remedies were considered before
resorting to race-conscious measures, see, e.g., Croson, 109 S. Ct. at
728;  Wygant, 476 U.S. at 283 (plurality opinion);  Fullilove, 448
U.S. at 463-467 (opinion of Burger, C.J.);  id. at 511 (Powell, J.,
concurring), and (2) whether the racial preference is limited to those
who have in fact suffered the discrimination the program is designed
to remedy.  See, e.g., Croson, 109 S. Ct. at 728-729;  id. at 734
(Stevens, J., concurring);  United States v. Paradise, 480 U.S. 149,
171 (1987) (plurality opinion);  Wygant, 476 U.S. at 276 (plurality
opinion);  Fullilove, 448 U.S. at 480-482, 486-488 (opinion of Burger,
C.J.);  id. at 510 (Powell, J., concurring).  The Court has identified
other factors relevant to the "narrow tailoring" inquiry as well, such
as the flexibility and planned duration of the remedy, and the effect
of the classification on innocent third parties.  Wygant, 476 U.S. at
282-283 (plurality opinion);  id. at 287 (O'Connor, J., concurring in
part and concurring in the judgment);  Fullilove, 448 U.S. at 514-515
(Powell, J., concurring).

   B. For the reasons detailed in our brief submitted as amicus curiae
in Metro Broadcasting, Inc. v. FCC, No. 89-453 (at 12-17), racial
classifications adopted by the federal government must also withstand
the "strict scrutiny" standard applied to those adopted by state and
local governments.  Like any racial classification, a federal
preference program must be designed to achieve a compelling
governmental interest.  In deciding whether such an interest exists, a
determination made by Congress that there is a need for remedial
race-conscious action is entitled to significant deference.  But this
additional deference is appropriate only if Congress itself makes the
critical determination that such a program is required, and only if
this determination has an adequate basis in fact.  And any such racial
classification must be narrowly tailored to achieve the compelling
interest identified by Congress.

   II. The Federal Communication Commission's Minority Distress Sale
Policy Is Not "Narrowly Tailored" To Achieve A "Compelling" Interest

   The initial question presented by this case, therefore, is whether
any "compelling" governmental interest may be found to justify the
FCC's minority distress sale policy, a policy that permits certain
licenses to be transferred only to minority-controlled firms.  The
second question is whether that policy is "narrowly tailored" to
achieve the identified compelling governmental purpose.  The
Commission's policy fails on both scores.

   A. 1. So far, this Court has endorsed only one sufficiently
compelling justification for a racial classification, namely,
remedying the effects of identified present or past racial
discrimination.  See pp. 11-12, supra.  Although petitioner
acknowledges (Br. 43) that "the principal goal of the distress sale
policy is to promote diversity of expression, not to remedy prior
discrimination," both petitioner (Br. 26-27 n.11) and the Commission
(Br. 21-28) also argue that the distress sale policy may be sustained
as an exercise of Congress's power to remedy prior discrimination.
/13/ For reasons set forth more fully in our brief in Metro
Broadcasting (at 18-23), we do not believe that asserted interest may
be invoked here.

   First, Congress has not specifically mandated through appropriate
statutory language that the Commission adopt or maintain the minority
distress sale policy in order to remedy prior discrimination.  See
U.S. Amicus Br. 14-15, Metro Broadcasting, Inc. v. FCC, No. 89-453.
The lottery statute, 47 U.S.C. 309(i)(3)(A), by its terms directs the
FCC to adopt a minority preference only when awarding an initial
license or construction permit "through the use of a system of random
selection." Id. 309(i)(1).  It does not purport to authorize the use
of preferences under the distress sale policy.  And the appropriations
riders, which provide that the FCC is not to spend appropriated funds
during a given fiscal year "to repeal, to retroactively apply changes
in, or to continue a re-examination of (the Commission's minority
distress sale policy)," 101 Stat. 1329-31 to 1329-32;  102 Stat.
2216-2217;  103 Stat. 1020-1021, by their terms only direct that the
status quo be maintained with respect to the Commission's policies --
policies that have previously been understood to be grounded in the
"programming diversity" rationale, rather than in any finding of prior
discrimination.  See note 13, supra;  FCC Br. 32-34.  /14/

   Nor do the legislative histories of these provisions show that
Congress harbored any specific intention to require -- or endorse --
Commission action to remedy prior discrimination by means of a
distress sale policy.  The history of the appropriations riders
suggests that Congress understood the FCC's distress sale policy to be
grounded in the programming diversity justification, not an
anti-discrimination rationale.  See U.S. Amicus Br. 20, 25-26, Metro
Broadcasting v. FCC, No. 89-453.  And although the conference
committee report on the legislation that adopted the lottery provision
mentions a possible remedial justification in passing, H.R. Conf. Rep.
No. 765, 97th Cong., 2d Sess. 43 (1982), this reference -- which was
directed to a different preference program -- cannot, as the
Commission suggests (Br. 22-23, 24, 27, 28), substitute for an express
congressional directive to maintain the distress sale policy in order
to overcome past discrimination.

   Second, even if Congress could somehow be viewed as having adopted
a remedial justification, Congress did not have sufficient evidence
before it of prior discrimination in the broadcasting industry to
justify race-conscious relief.  See, e.g., Croson, 109 S. Ct. at 727
(opinion of the Court);  Wygant, 476 U.S. at 277 (plurality opinion);
Fullilove, 448 U.S. at 533-535 (Stevens, J., dissenting).  To the
contrary, as Judge Silberman correctly observed, Pet. App. 28a-29a,
there can be no claim based on the sparse legislative history of the
appropriations riders that Congress had before it evidence suggesting
that minorities have been denied effective participation in the
broadcasting industry either because of official or private acts of
discrimination.  This is rather a case like Croson, in which "(t)here
is nothing approaching a prima facie case of constitutional or
statutory violation by anyone" in the broadcasting industry.  109 S.
Ct. at 724 (opinion of the Court).

   Nor does the bare mention of a possible remedial justification in
the legislative history of the lottery program constitute the kind of
factual predicate necessary to sustain the use of a racial
classification.  Compare Fullilove, 448 U.S. at 463-467 (opinion of
Burger, C.J.) (relying on extensive legislative history of related
legislation).  To begin with, the relevant statement -- the "Conferees
find that the effects of past inequities stemming from racial and
ethnic discrimination have resulted in severe underrepresentation of
minorities in the media of mass communications * * * ," H.R. Conf.
Rep. No. 765, supra, at 43 -- carefully avoids asserting that there in
fact has been any discrimination in the broadcasting industry.
Rather, it speaks of "underrepresentation" of minorities in "media of
mass communications" (not explicitly broadcasting), resulting from
"the effects of past inequities," which in turn have "stemmed" from
racial and ethnic discrimination.  The statement therefore at most
asserts that generalized societal discrimination has had an effect on
the communications industry, not unlike the effect such discrimination
would have across the board;  it does not make any finding of past
discrimination in broadcasting or by the FCC.  This is confirmed by an
earlier conference report, which described the rationale for the
lottery preference in this way:

         It is the firm intention of the conferees that ownership by
      minorities, such as blacks and hispanics, * * * and ownership by
      other underrepresented groups, such as labor unions and
      community organizations, is to be encouraged through the award
      of significant preferences in any such random selection
      proceeding.  These are the groups which are inadequately
      represented in terms of nationwide telecommunications ownership,
      and it is the intention of the conferees * * * that the
      objective of increasing the number of media outlets owned by
      such persons or groups be met.

H.R. Conf. Rep. No. 208, 97th Cong., 1st Sess. 897 (1981).  This
statement makes no mention of discrimination at all.  Thus, it is far
from clear whether the conferees, in calling for a racial preference
in a lottery system, were focusing on the need to remedy identified
discrimination in the broadcast industry, or were simply intent on
increasing minority ownership of broadcast licenses for its own sake
-- a clearly impermissible governmental objective.  See p. 19, infra.

   Given this legislative record, it is not surprising that the
Commission (Br. 30-31) and amici (e.g., Congressional Black Caucus, et
al., Br. 18-24), frankly seek to justify the preference policies as an
effort to remedy prior "societal discrimination." This Court has
tended to view such arguments with great caution, see Croson, 109
S.Ct. at 723 (plurality opinion);  Wygant, 476 U.S. at 276 (plurality
opinion);  Bakke, 438 U.S. at 307 (opinion of Powell, J.), and with
good reason.  The type of "societal discrimination" invoked by the
Commission and others operates at such a diffuse level that it would
justify the use of racial preferences in virtually every aspect of
organized social life.  The inherently suspect nature of racial
classifications requires a more focused and meaningful inquiry.  In
this case, for example, no one maintains that the Commission has
discriminated against minorities in awarding broadcast licenses.  And
although the contention is made that the original allocation of
broadcast licenses occurred at a time when "most licenses (were)
awarded to white males," ACLU Amicus Br. 19, this hardly amounts to
proof or even an assertion of prior discrimination, and does not mean
that the original allocation has remained frozen since then or that
later changes in the allocation were infected by discrimination.  Any
such claim ignores the realities of the modern broadcasting industry,
where it appears that roughly 1000 radio stations and 250 television
stations (approximately 9% of all broadcast stations) are sold each
year.  /15/ Thus, as long as there is no discrimination today in the
broadcast industry, minority groups should have the same opportunity
to obtain broadcast licenses as nonminorities do.  To the extent they
do not or cannot avail themselves of that equal opportunity, it is not
because of discrimination in the broadcast industry or by the FCC.

   It follows that the "societal discrimination" advanced in this case
boils down to the proposition that, because of past discrimination,
Blacks and other minority groups have, on average, accumulated fewer
of the skills and resources needed to acquire the financing and prior
experience necessary to secure a broadcasting license than, again on
average, nonminorities have.  But this type of societal discrimination
is so "amorphous," Wygant, 476 U.S. at 276 (plurality opinion), that
it would justify the use of racial preferences in virtually any
business where there is "underrepresentation" of minorities.
Moreover, it would seemingly require that those preferential policies
remain in effect until all racial and ethnic groups have reached exact
"parity" in every industry or segment of society.  If racial
preferences can be justified by "discrimination" identified at this
level of abstraction, then any meaningful distinction between
legitimate remedial action and preferences for p references sake would
disappear.

   The FCC has avoided suggesting that it may seek to promote diverse
ownership as an end in itself.  As Justice Powell stated,
"(p)referring members of any one group for no reason other than race
or ethnic origin is discrimination for its own sake.  This the
Constitution forbids." Bakke, 438 U.S. at 307;  accord Croson, 109 S.
Ct. at 721 (plurality opinion);  id. at 730-734 (Stevens, J.,
concurring in part and concurring in the judgment);  id at 735, 739
(Scalia, J., concurring in the judgment).  Nevertheless, given the
inadequate supporting record and the confused state of affairs
surrounding its preference policies, the Commission may well be
pursuing just that sort of impermissible endeavor.

   2. Even if it could be said that the FCC's minority distress sale
policy was adopted to remedy prior identified discrimination, it is
plainly not "narrowly tailored" to achieve that alleged purpose.  /16/
First, neither Congress nor the Commission has adequately considered
less intrusive race-neutral means to increase minority ownership of
broadcasting licenses.  See, e.g., Croson, 109 S. Ct. at 728;
Fullilove, 448 U.S. at 463-467 (opinion of Burger, C.J.);  id. at 511
(Powell, J., concurring).  The FCC (Br. 38-39) suggests that recent
efforts to increase the total number of radio and television stations
and to relax certain financial requirements for prospective license
holders show that it has considered race-neutral measures to remedy
the effects of prior discrimination.  But it is implausible to regard
these as steps taken to rectify prior discrimination, since the
Commission itself has never regarded the lack of minority ownership of
broadcasting licenses to be the result of discrimination in the
broadcasting industry.  See p. 14 & note 13, supra.  In any event,
with one exception, /17/ these measures were not designed to increase
diversity of ownership of broadcast licenses, as opposed to increasing
diversity of programming, and thus they have no nexus to the stated
rationale.

   Second, the minority distress sale policy is not aimed at
correcting the actual effects of past discrimination.  See, e.g.,
Croson, 109 S. Ct. at 728-729;  id. at 734 (Stevens, J., concurring in
part and concurring in the judgment);  Paradise, 480 U.S. at 171
(plurality opinion);  Fullilove, 448 U.S. at 480-482, 486-488 (opinion
of Burger, C.J.);  id. at 510 (Powell, J., concurring).  In
particular, the policy, as applied, does not permit an inquiry to
determine whether any particular minority applicant was in fact not
disadvantaged by past discrimination.  As Judge Silberman observed,
the distress sale policy "in no way require(s) the preference to be
tied to the disadvantage suffered by the minority enterprise.  There
is no opportunity here to ensure that participating minority
enterprises have actually been disadvantaged by past discrimination or
its effects." Pet. App. 30a;  see id. at 61a-63a (MacKinnon, J.,
concurring in the judgment).

   The Commission (Br. 42-46) and petitioner (Br. 30-39) take pains to
point out that the distress sale policy, which in practice applies in
a relatively narrow set of circumstances (see pp. 2-3, supra), has
accounted for only 38 sales over the past decade -- a period during
which the Commission approved approximately 10,000 sales of broadcast
stations (see note 5, supra).  But the fact that explicit
consideration of race or ethnic background is limited to a few cases
does not mean that such consideration is "narrowly tailored" in a
constitutionally relevant sense.  For example, it does not mean that
the policy will be applied only to those who are truly disadvantaged
or only when it will not injure innocent third parties.  As this case
makes plain, minority ownership is the determinative factor in the
Commission's approval of the distress sale, whether or not the
applicant can show that the particular minority owner has been
disadvantaged.  /18/ As Judge Silberman noted, the FCC's policy can
clearly injure third parties:  "It is a Hartford station Shurberg
wants and, after all is said and done, he has been absolutely denied
an opportunity to compete for one merely because of his race." Pet.
App. 35a;  see id. at 66a-68a (MacKinnon, J., concurring in the
judgment).  /19/ Finally, the fact that Commission may have
discriminated on the basis of race or ethnic origin only 38 times in
the past decade through this program is in any event a curious defense
of that program's legitimacy.

   B. 1. The second asserted justification for restricting access to
the distress sale program on the basis of skin color and ethnic
background -- and the one on which the Commission (Br. 23-24, 32-34,
35-38) and petitioner (Br. 19-26) principally rely -- is to further
diversity of programming.  As we pointed out in our brief in Metro
Broadcasting (at 24), this asserted justification is clearly different
from any of the rationales previously considered by this Court in
support of minority preference programs.  As we also noted, there is
reason to question whether this justification, as applied to the
public broadcast spectrum, qualifies as "compelling."

   a. There can be no doubt that promoting diversity of opinion and
viewpoints is a legitimate governmental interest, sufficient to
sustain content-neutral and race-neutral measures that do not infringe
on fundamental constitutional rights.  See Associated Press v. United
States, 326 U.S. 1 (1945) (upholding application of the antitrust laws
to the news media);  FCC v. National Citizens Comm. for Broadcasting,
436 U.S. 775 (1978) (upholding FCC rules limiting cross-ownership of
broadcast licenses and newspapers in the same community);  United
States v. Storer Broadcasting Co., 351 U.S. 192 (1956) (upholding FCC
rules limiting the total number of stations in any service area that a
person may own or control).  With respect to the newsprint media,
however, this Court has held that the promotion of diverse viewpoints
is not sufficiently compelling to justify coercive governmental
measures that interfere with the First Amendment rights of newspaper
publishers.  Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241,
248 (1974).  The Court had previously reached a contrary conclusion
with respect to the broadcast media in Red Lion Broadcasting Co. v.
FCC, 395 U.S. 367 (1969), but did so largely because of factual
circumstances -- a perceived scarcity of broadcast outlets -- that the
Commission has recently determined no longer exists.  See pp. 25-26,
infra.  It is thus far from clear that the interest in promoting
"programming diversity" is sufficiently compelling to justify the use
of racial classifications that would otherwise infringe upon equal
protection rights.

   The idea that the government has a compelling interest in promoting
viewpoints identified with specific racial or ethnic groups is also
deeply troubling.  The proposition that certain minority groups have
distinctive tastes and preferences in programming, and that minority
owners will be more disposed than nonminority owners to offer such
programming, have not been demonstrated by credible empirical
evidence.  See pp. 23-25, infra.  But even if they were, it is quite
another thing for the government to adopt an official presumption that
the color of a person's skin or his ethnic background will predict the
way he will think and act.  These types of presumptions -- usually
referred to as stereotypes -- "carry a danger of stigmatic harm" and
"may in fact promote notions of racial inferiority and lead to a
politics of racial hostility." Croson, 109 S. Ct. at 721.  /20/

   b. Even if programming diversity might in theory qualify as a
compelling governmental interest, there are other reasons why it
cannot sustain the Commission's distress sale policy.  As in the case
of the FCC's comparative license preference policy (U.S. Amicus Br.
25-26, Metro Broadcasting, Inc. v. FCC, No. 89-453), Congress has
never adopted legislation that expressly directs the FCC to adopt a
distress sale policy in order to promote programming diversity.  The
most that can be said is that there are expressions in the legislative
history of the appropriations riders indicating that individual
members of Congress approved of that policy.  See, e.g., S. Rep. No.
182, 100th Cong., 1st Sess. 76 (1987);  134 Cong. Rec. S10,021 (daily
ed. July 27, 1988) (statement of Sen. Hollings);  133 Cong. Rec.
S14,395 (daily ed. Oct. 15, 1987) (statement of Sen. Lautenberg).  But
when Congress seeks to require the use of racial classifications that
would otherwise violate equal protection, it must make its intention
"unmistakably clear in the language of the statute." Dellmuth v. Muth,
109 S. Ct. 2397, 2400 (1989) (citation omitted).  A bland directive in
a massive appropriations rider that by its terms merely directs that
no money be spent during the fiscal year to change the status quo does
not satisfy this requirement.  See Hampton v. Mow Sun Wong, 426 U.S.
88, 114-116 (1976);  see also TVA v. Hill, 437 U.S. 153, 190-191
(1978).

   c. In any event, even if it could be said that Congress had
expressly directed the Commission to award minority preferences in
order to enhance programming diversity, it cannot be said that
Congress had an adequate basis in fact to justify such action.  In
order to demonstrate the need for racial preferences on this
rationale, it would be necessary to show:  (1) that different racial
or ethnic groups have distinctive listening or viewing tastes;  (2)
that one or more of these distinctive racial or ethnic tastes are
being undersupplied by today's broadcasting industry;  and (3) that
increasing the percentage of minority owners would overcome the
shortage of programming that serves these distinctive tastes.  See
Winter Park Communications v. FCC, 873 F.2d 347, 358 (D.C. Cir. 1989),
(Williams, J., dissenting) cert. granted, 110 S. Ct. 715 (1990).  To
the extent that Congress even perceived the need to resolve these
questions, however, it merely assumed the answers.  See Pet. App. 46a.

   The FCC (Br. 9-10, 36-37) and petitioner (Br. 45-47) point out that
there is scattered anecdotal testimony offered by various individuals
and interest groups in congressional hearings that might support one
or more of these propositions.  /21/ But where, as here, Congress has
not affirmatively enacted legislation based on any finding that race
is a reliable proxy for programming choices, such an unfocused
gathering of information is an inadequate basis for invoking an
otherwise suspect racial classification.

   The Commission also suggests (Br. 26, 36 n.32) that Congress could
have properly relied on a recent report filed by the Congressional
Research Service that purports to document a correlation between
minority ownership and diverse programming.  Congressional Research
Service, Minority Broadcast Station Ownership and Broadcast
Programming:  Is There A Nexus?  (June 29, 1988).  But that report is
so fundamentally flawed as to deprive it of any significance.  For
example, it fails even to define "minority programming," and it fails
to take into account the possible differences in the racial
composition of various station owners' audiences.  See Winter Park
Communications, 873 F.2d at 358-361 (Williams, J., dissenting).  In
any event, apart from one passing reference to that report in the
pertinent legislative record, see 134 Cong. Rec. S10,021 (daily ed.
July 27, 1988) (statement of Sen. Hollings), there are no indications
that Congress even considered, let alone accepted, the tentative
findings in the CRS survey in connection with maintaining the
appropriations provision blocking the FCC's inquiry proceeding.  /22/

   Finally, the Commission (Br. 2, 26-28, 36-37) and petitioner (Br.
45-47) contend that Congress could have relied on conclusions reached
in the Report of the National Advisory Commission on Civil Disorders
(1968), and the United States Civil Rights Commission's monographs,
Window Dressing on the Set:  Women and Minorities in Television (Aug.
1977), and Window Dressing on the Set:  An Update (Jan. 1979).  But
those reports, by their terms, do not even purport to show that race
is a reliable proxy for programming choices.

   Each of the foregoing sources of supposed factual support for the
programming diversity rationale also suffers from a more fundamental
shortcoming.  Neither petitioner, nor the Commission, nor any of the
supporting amici, explain why the conclusions reached in the various
studies -- some of which are more than two decades old -- have any
continuing relevance when the Commission itself has determined in
another context that fundamental changes in the broadcasting industry
have eliminated the need for intrusive government regulation in order
to ensure "programming diversity." Specifically, because of increased
numbers of broadcast outlets, and the introduction of cable television
and other new technologies, the Commission has decided to abandon the
"fairness doctrine," noting that there are now a "sufficient number of
over-the-air television and radio voices to insure the presentation of
diverse opinions on issues of public importance." Report Concerning
General Fairness Doctrine Obligations of Broadcast Licensees, 102
F.C.C.2d 143, 208 (1985);  see Syracuse Peace Council v. FCC, 867 F.2d
654 (D.C. Cir. 1989), cert. denied, 110 S. Ct. 717 (1990).  As the
Commission has previously recognized, these fundamental changes in the
broadcasting industry also call into question the need for special
policies regarding minority ownership designed to enhance programming
diversity.  /23/

   If the record before Congress fails to disclose any factual support
for the programming diversity theory, neither does the administrative
history of the FCC policy offer anything to fill "this evidentiary
void." Winter Park Communications, 873 F.2d at 358 (Williams, J.,
dissenting).  The Commission initially adopted its policy not after
any careful study of the need for additional programming diversity and
the relationship between ownership and programming, but rather at the
direction of the court of appeals for the District of Columbia
Circuit.  See pp. 2-3, supra.  The court of appeals, in turn, merely
assumed that there was inadequate "minority" programming, and that
increased minority ownership would rectify this shortcoming.  See
Garrett, 513 F.2d at 1063.

   The administrative record compiled by the Commission, such as it
is, confirms that the Commission also acted on the basis of untested
assumptions.  /24/ In fact, the Commission has candidly admitted the
lack of an evidentiary predicate for the preference policy.  In 1986,
the FCC conceded that no Commission proceeding establishes as a fact
that

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

Brief for FCC on Rehearing En Banc at 27-28, Steele v. FCC, 770 F.2d
1192 (D.C. Cir. 1985).  It was precisely for that reason that the
Commission initiated its inquiry proceeding in December 1986.  See
note 1, supra.  Congress, however, terminated that investigation, see
note 7, supra, and thus the Commission has been unable to determine
whether the asserted purpose of the minority preference policy has any
factual support either now or over a decade ago when it was first
adopted.  Congress cannot simultaneously purport to rely on the
"findings" of an administrative agency and yet prohibit that agency
from engaging in a more complete inquiry to determine the actual
facts.

   2. Putting aside the evidentiary difficulties with the "programming
diversity" rationale, that policy is not "narrowly tailored" to
accomplish the asserted goal.  The policy's goal -- diverse
programming -- is too indeterminate to allow either the Commission or
any reviewing court to know whether it has ever been attained.  This
Court has made clear that such a feature, which renders the preference
policy potentially "ageless in (its) reach into the past, and timeless
in (its) ability to affect the future," Wygant, 476 U.S. at 276
(plurality opinion), precludes the use of a racial classification.
See, e.g., Croson, 109 S. Ct. at 723 (plurality opinion);  Paradise,
480 U.S. at 171 (plurality opinion).  As Judge MacKinnon observed,
"because the distress sale program has no limits of any character it
is not sufficiently tailored to the goal of promoting programming
diversity.  Compliance is voluntary and the program contains no
assurance that any programming diversity will be achieved.  Thus, the
FCC, subject only to the broad public interest standard, has
unfettered discretion in in approving distress sales." Pet. App.
63a-64a (footnote omitted).

   C. Implicitly acknowledging that neither the remedial justification
nor the programming diversity justification will bear scrutiny, the
Commission and certain amici also advance certain other, novel
justifications for the FCC's minority preference programs.  None of
these new justifications has been expressly invoked by Congress, nor
has any been previously relied upon by the FCC.  Thus, for the reasons
noted above and in our brief in Metro Broadcasting (at 14-15, 19, 22,
25-26), they would not be entitled to any additional deference in
determining whether the use of a racial classification is permissible.
 In any event, they suffer from many of the same analytical
deficiencies as the remedial and programming diversity theories.

   The Commission (Br. at 30) suggests that "(b)roadcasting, unlike
other industries, such as the construction industry in Fullilove and
Croson, involves the use of a unique, limited resource pursuant to a
system of government licensing." But all resources subject to
government licensing are "unique." This attribute, by itself, cannot
distinguish FCC broadcasting licenses from offshore oil drilling
permits, or patents, or airport landing rights.  If the Commission
means to suggest that broadcasting licenses are of "unique" public
importance, the only apparent reason why this would be so would be
because broadcasting supplies information and opinion to the public;
if this is the underlying reason, however, then the unique resource
notion collapses into a version of the programming diversity argument.
 In any event, there is no reason why this "unique resource" should
be, as the Commission suggests (Br. at 31), subject to "(e)ntrenched
ownership patterns." As long as broadcast licenses are freely bought
and sold in the secondary market -- as the Commission's own data show
they are -- then it is hard to see why a minority preference program
is necessary to modify the distribution of broadcasting licenses that
existed when the industry was in its infancy.

   Certain amici (ACLU Br. at 9) suggest what they call a "structural"
justification for the FCC preference programs, based on an alleged
"need to repair the damaged institution through the use of race or sex
as an allocative" criterion.  But amici do not explain why
broadcasting is a "damaged institution," unless it has either been
distorted by prior discrimination, or is structured in such a way that
it fails to supply diverse programming.  From all that appears,
therefore, the "structural" justification is another name for either
the remedial or the programming diversity theory.  And to the extent
that this justification also carries the suggestion that there is some
permanent imbalance built into the broadcasting industry stemming from
the original allocation of licenses it, like the Commission's notion
of a "unique resources," completely disregards the rapid turnover in
broadcasting authority that should permit any such imbalance to be
rectified.

   The quest for an alternative rationale only reinforces the
conclusion that the FCC's minority preference programs are policies in
search of a supporting justification.  This Court has consistently
rejected the idea that the government may pursue a policy of racial
balancing for its own sake.  See p. 19, supra.  Yet the creative
energies expended in a post hoc effort to uncover a sustainable
rationale for the FCC's preference programs suggests that this may in
fact be all that they represent.

                              CONCLUSION

   The judgment of the court of appeals should be affirmed.

   Respectfully submitted.

   JOHN G. ROBERTS, JR.

      Acting Solicitor General /25/

   JAMES P. TURNER

      Acting Assistant Attorney General

   THOMAS W. MERRILL

      Deputy Solicitor General

   ROGER CLEGG

      Deputy Assistant Attorney General

   MICHAEL R. LAZERWITZ

      Assistant to the Solicitor General

   MARCH 1990

   /1/ See Reexamination of the Commission's Comparative Licensing,
Distress Sales and Tax Certificate Policies Premised on Racial,
Ethnic, or Gender Classifications, 1 F.C.C. Rcd 1315 (1986), modified,
2 F.C.C. Rcd 2377 (1987);  J.A. 48-66.

   /2/ We have provided copies of our brief in Metro Broadcasting to
each party's counsel in this case.

   /3/ Given the position of the United States on the question
presented, and in order for the Court to have the benefit of the views
of the administrative agency involved, the Acting Solicitor General
has authorized the Federal Communications Commission to appear before
this Court through its own attorneys.  See 28 U.S.C. 518(a);  28
C.F.R. 0.20(a).

   /4/ This programming diversity rationale has also been invoked to
support several other FCC policies designed to promote greater
minority participation in broadcasting, including the policy of
awarding preferences for minority ownership in comparative license
proceedings at issue in Metro Broadcasting v. FCC, No. 89-453.  See
U.S. Amicus Br. 3 n.3, Metro Broadcasting, Inc. v. FCC, No. 89-453.

   /5/ From fiscal years 1979 through 1988, the FCC has approved only
38 distress sales.  During that same period, the Commission approved a
total of approximately 10,000 sales of broadcast stations.  See FCC
Br. 43-44 & nn.43, 44.

   /6/ The FCC rejected Shruberg's argument that he was entitled to a
comparative hearing against Faith Center's renewal application,
concluding that the

      minority ownership policies, as reflected here in the distress
      sale proposal, are sufficiently important to warrant maintaining
      Faith Center's renewal application in hearing status, protected
      from competing applications, for a sufficient additional time to
      permit us to consider the pending applications to assign the
      license to (petitioner).

Pet. App. 121a.  The Commission also rejected Shurberg's application
for a construction permit because he had not complied with controlling
regulations.  See 47 C.F.R. 73.3516(e).  Lastly, the Commission
rejected Shurberg's contention that petitioner was not a bona fide
minority-controlled applicant.  Pet. App. 125a-126a.

   /7/ The disposition of Shurberg's appeal was delayed for several
years while the Commission began a reconsideration of its minority
preference policies.  See U.S. Amicus Br. 4-5 n.4, Metro Broadcasting,
Inc. v. FCC, No. 89-453.  In 1987, Congress enacted an appropriations
rider that prohibited the Commission from spending any appropriated
funds "to repeal, to retroactively apply changes in, or to continue a
re-examination of" its minority and female preference policies.  Pub.
L. No. 100-202, 101 Stat. 1329-31 to 1329-32 (1987).  Congress has
since extended the prohibition through fiscal years 1989 and 1990.
See Pub. L. No. 100-459, 102 Stat. 2216-2217 (1988);  Pub. L. No.
101-162, 103 Stat. 1020-1021 (1989).  In response to the
appropriations rider, the FCC closed its inquiry proceeding and
reinstated its policy of preferring minority-controlled applicants in
distress sales.  See Order (MM Docket No. 86-484), 3 F.C.C. Rcd 766
(1988).  The FCC then reaffirmed its earlier decision in this case
approving Faith Center's application for permission to assign its
broadcast license to petitioner under the distress sale program.  See
Faith Center, Inc., 3 F.C.C. Rcd 866 (1988).

   /8/ While the case was pending before the court of appeals,
petitioner entered into voluntary reorganization proceedings under
Chapter 11 of the Bankruptcy Code.  See Order, In re Astroline
Communications Co., No. 2-88-01125 (Bankr. D. Conn. Dec. 1, 1988).
That bankruptcy proceeding remains pending.  Petitioner has informed
the FCC that its financial condition and future operation of the
television station are uncertain.  See Arnold L. Chase, 4 F.C.C. Rcd
5085 (1989);  see also FCC Br. 16 n.16.

   /9/ As a threshold matter, Judge Silberman concluded that the
Commission had properly applied the governing statute and regulations
(47 U.S.C. 307(c);  47 C.F.R. 73.3516(e)) in concluding that Shurberg
was not entitled to a comparative hearing.  See Pet. App. 13a-17a.
Neither Judge MacKinnon nor Chief Judge Wald disagreed with this
conclusion.

   In addition, Judge Silberman concluded that the Commission had not
exceeded its statutory authority under the Communications Act of 1934
when it adopted the minority distress sale policy.  See Pet. App. 17a.
 Judge MacKinnon apparently agreed with this conclusion.  See id. at
56a ("the case has leveled down to a constitutional attack on the
distress sale policy").  Chief Judge Wald addressed the constitutional
issue in light of the majority's decision to do so.  See id. at
72a-73a n.3.

   /10/ For that reason, Judge MacKinnon chose not to reach the
question "whether either promoting programming diversity or remedying
societal discrimination (is) a sufficiently compelling governmental
interest to support the use of government sponsored minority
preference programs." Pet. App. 60a n.11.

   /11/ The court of appeals later denied petitions for rehearing,
together with suggestions of rehearing en banc, filed by both
petitioner and the FCC.  Pet. App. 143a-154a;  id. at 155a-160a.
Chief Judge Wald, joined by Judges Robinson, Mikva, Edwards, and Ruth
B. Ginsburg, dissented from the denial of rehearing en banc.  Id. at
155a-160a.

   /12/ In addition, individual Members of the Court have suggested or
found that the promotion of "racial diversity" may be a sufficiently
compelling justification for the government to impose race-based
measures, at least in the context of promoting a diverse student body
or a diverse faculty in higher education.  See Bakke, 438 U.S. at
311-315 (opinion of Powell, J.);  Wygant, 476 U.S. at 306 (Marshall,
J., dissenting);  id. at 315-317 (Stevens, J., dissenting);  see also
id. at 286 (O'Connor, J., concurring in part and concurring in the
judgment).

   /13/ As we explained in our brief in Metro Broadcasting (at 22,
27-28), the FCC has consistently taken the position that its
preference policies are not designed to remedy prior discrimination in
the broadcasting industry.  In this case, for example, the Commission
stated in the court of appeals that its "minority ownership policies
are based principally on the Commission's authority under the
Communications Act to encourage diversity of programming on broadcast
stations.  The FCC's primary goal is not to remedy past
discrimination." FCC C.A. Br. 29-30;  J.A. 99-101;  see Pet. App. 25a,
79a.  As we understand the argument in its brief in this Court, the
Commission does not retreat from its previously documented position
regarding its own rationale for these policies, but simply asserts the
remedial justification as one purportedly advanced by Congress.  See
Br. 21-31.  The Commission does suggest in passing (Br. 30-31) that
its otherwise "justifiable efforts" in regulating the broadcasting
industry may have inadvertently hampered minority ownership of
stations.  That unsupported assertion is scarcely tantamount to a
confession of prior discriminatory conduct, nor do any such
inadvertent effects amount to unconstitutional discrimination of the
sort that might justify race-conscious remedial action.

   /14/ Although both the Commission (Br. 28-31) and petitioner (Br.
26-27 n.11) suggest that the lottery statute and the appropriations
riders may be regarded as an exercise of Congress's enforcement power
under Section 5 of the Fourteenth Amendment, neither party adequately
explains how Section 5 can be applied to address alleged
discrimination in an area regulated by the federal government.
Section 5 gives Congress power to legislate only with respect to
Section 1 of the Fourteenth Amendment, which in turn is concerned with
state as opposed to federal action.  See U.S. Amicus Br. 18 n.10,
Metro Broadcasting v. FCC, No. 89-453.  The only way to attribute
ownership patterns in the broadcasting industry to state
discrimination would be to adopt a theory of "societal discrimination"
that is so amorphous it would effectively eliminate any distinction
between remedial and nonremedial racial classifications.  See pp.
17-19, infra.

   This case therefore differs from Fullilove, where Congress could be
said to be acting under Section 5 to rectify past discrimination in
the awarding of public works contracts by the States.  In any event,
the Court need not reach the broader question whether Congress would
have the power to adopt remedial race-conscious legislation for the
broadcasting industry under Section 5 of the Fourteenth Amendment (or
for that matter, under Section 2 of the Thirteenth Amendment, see
Jones v. Alfred H. Mayer & Co., 392 U.S. 409 (1968), which neither
petitioner nor the FCC claims), since in our view it is clear that
Congress has not attempted to do so with the requisite specificity or
with the kind of supporting evidence required by Fullilove.

   When Congress has enacted racial preferences that appear to be
consistent with the standards set forth herein, the United States has
defended such legislation against constitutional challenges.  See,
e.g., Carpenter v. Thornburg, No. 88-3578 (4th Cir. Jan. 16, 1990).

   /15/ These figures are based on the FCC's estimate that
approximately one-half of all transfer applications approved each year
reflect station sales (as opposed to reorganizations), and on averages
over the past 10 years.  See Broadcast/Mass Media Application
Statistics, FCC Ann. Rep. (Fiscal Years 1979-1988).

   /16/ Petitioner contends (Br. 27-29) that the Court should defer to
the choice of race-conscious measures adopted by the Congress and the
Commission.  For the reasons explained in our brief in Metro
Broadcasting (at 15-17), the Court has already eschewed such an
approach.

   /17/ The Commission's "procedures to disseminate more widely
information about the availability of potential minority buyers of
broadcast stations" (FCC Br. 39) would appear to be an effort to
increase minority ownership of licenses, as opposed to
minority-oriented programming.

   /18/ Indeed, in light of certain factual allegations raised by
Shurberg, see, e.g., Br. in Opp. 6-9;  J.A. 68-69, there appear to be
doubts regarding the propriety of characterizing petitioner as
"minority-controlled" by virtue of having Mr. Ramirez as a general
partner.

   /19/ For this reason, the Commission's observation (Br. 44) that a
nonminority applicant can overcome the distress sale preference by
filing a timely application for a mutually exclusive license merely
shows that the distress sale program is likely to affect only a small
number of cases.  It does not establish that the program, where it
does apply, is narrowly tailored.

   /20/ Petitioner's submissions to the Commission regarding its
proposed "minority programming" appear to confirm that these types of
race-conscious preferences may lead to stereotyping.  See, e.g., J.A.
24-27, 31-33.

   /21/ See Minority Ownership of Broadcast Stations:  Hearing Before
the Subcomm. on Communications of the Senate Comm. on Commerce,
Science, and Transportation, 101st Cong., 1st Sess. (1989) (1989
Hearing);  Minority-Owned Broadcast Stations:  Hearing on H.R. 5373
Before the Subcomm. on Telecommunications, Consumer Protection, and
Finance of the House Comm. on Energy and Commerce, 99th Cong., 2d
Sess. (1986);  Minority Participation in the Media:  Hearings Before
the Subcomm. on Telecommunications, Consumer Protection, and Finance
of the House Comm. on Energy and Commerce, 98th Cong., 1st Sess.
(1983);  Parity for Minorities in the Media:  Hearing on H.R. 1155
Before the Subcomm. on Telecommunications, Consumer Protection, and
Finance of the House Comm. on Energy and Commerce, 98th Cong., 1st
Sess. (1983).

   /22/ Indeed, Senator Inouye, a leading proponent of the
Commission's minority preference policies, recently acknowledged that
Congress "need(s) to demonstrate that minority * * * ownership of
broadcast stations does, in fact, promote diversity in the views
presented on the airwaves." 1989 Hearing at 2.

   /23/ The Commission has recognized that those changes in the
marketplace

      have resulted in (a) * * * rich array of information and
      entertainment programming, and, further, that this phenomenon of
      increased competition driving increased program diversity will
      continue.  These findings demonstrate that in the current
      environment there is little if any basis to assume that racial
      or gender preferences are essential to the availability of
      minorities' or women's viewpoints.  Thus, rather than there
      being a record to demonstrate that these preferences are
      essential, what record is available suggests otherwise.

Brief for FCC on Rehearing En Banc at 26-27, Steele v. FCC, 770 F.2d
1192 (D.C. Cir. 1985).

   /24/ For example, the 1978 Policy Statement, 68 F.C.C.2d at 981,
quotes the Task Force Report.  The Task Force Report, in turn,
expressly relies on decisions such as TV 9 and Garrett for its
endorsement of the proposition that increased minority ownership will
promote "greater diversity in the media." Task Force Report at 4;  see
id. at 4-6.

   /25/ The Solicitor General is disqualified in this case.