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

   Brief For The Federal Communications Commission In Opposition

            TABLE OF CONTENTS
   Question Presented
   Opinions below
   Jurisdiction
   Statement
   A. Background
      1. Distress sale program
      2. Development of the FCC's minority ownership policies
      3. Congressional oversight of the FCC's minority ownership
         policies
   B. Proceedings in the present case
      1. The FCC's initial licensing proceedings
      2. Intervening legal and administrative proceedings
      3. The court of appeals decision
   Argument
   Conclusion

                            OPINIONS BELOW

   The opinion of the court of appeals (Pet. App. 1a-112a) is reported
at 876 F.2d 902;  the orders and opinions filed on the denial of the
petition for rehearing and suggestion of rehearing en banc (Pet. App.
143a-154a;  id. at 155a-160a) are reported at 876 F.2d 953 and 876
F.2d 958, respectively.  The memorandum opinion and order of the
Federal Communications Commission (Pet. App. 113a-129a) is reported at
99 F.C.C.2d 1164.

                             JURISDICTION

   The judgment of the court of appeals was entered on March 31, 1989.
 A petition for rehearing was denied on June 16, 1989 (Pet. App.
143a-144a).  By an order dated September 13, 1989, the Chief Justice
extended the time for filing a petition for a writ of certiorari to
and including October 29, 1989.  The petition for a writ of certiorari
was filed on October 30, 1989 (a Monday).  The jurisdiction of this
Court is invoked under 28 U.S.C. 1254(1).

                          QUESTION PRESENTED

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

                               STATEMENT

   A. Background

   1. Distress Sale Program

   In the Communications Act of 1934, Congress assigned to the Federal
Communications Commission the exclusive authority to grant, and
oversee the transfer of, licenses to build and operate radio and
television stations in the United States.  See 47 U.S.C. 151, 301,
303, 307.  The FCC generally prohibits a television or radio broadcast
licensee, whose license has been designated for a revocation hearing,
or whose renewal application has been scheduled for a qualification
hearing, from assigning or transferring that license until the
Commission has determined that the licensee remains qualified to hold
the authorization.  See, e.g., Northland Television, Inc., 42 Rad.
Reg.2d (P & F) 1107, 1110 (1978);  see also Pet. App. 4a-5a.  In 1978,
as part of its efforts "to further encourage broadcasters to seek out
minority purchasers," Statement of Policy on Minority Ownership of
Broadcasting Facilities, 68 F.C.C.2d 979, 983 (1978) (hereinafter 1978
Policy Statement), the FCC instituted the minority distress sale
program.  That program

         permit(s) licensees whose licenses have been designated for
      revocation hearing, or whose renewal applications have been
      designated for hearing on basic qualification issues * * *, to
      transfer or assign their licenses at a "distress sale" price to
      applicants with a significant minority ownership interest,
      assuming the proposed assignee or transferee meets other
      qualifications.

Ibid.  (footnote omitted).

   Under the distress sale program, a qualified minority applicant is
one that meets the Commission's basic qualifications and in which the
minority ownership interest exceeds 50% or is controlling.  See
Commission Policy Regarding the Advancement of Minority Ownership in
Broadcasting, 92 F.C.C.2d 849, 853 (1982).  /1/ The distress sale
price, to receive Commission approval, 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).
/2/

   2. Development of the FCC's Minority Ownership Policies

   Until the 1970s, the Commission had taken relatively few formal
steps that departed from its policy of selecting applicants for radio
and television broadcast licenses on the basis of race-neutral
criteria.  See generally Policy Statement on Comparative Broadcast
Hearings, 1 F.C.C.2d 393 (1965).  /3/ In 1973, however, the District
of Columbia Circuit concluded that there was a dearth of minorities in
broadcasting and that promoting greater minority ownership in the
broadcasting industry would foster program diversity.  The court of
appeals therefore directed the Commission to give some "favorable
consideration" to an applicant who proposes to include racial
minorities among its owners who will participate in managing the
station.  TV 9, Inc. v. FCC, 495 F.2d 929, 937 (D.C. Cir. 1973), cert.
denied, 419 U.S. 986 (1974);  see id. at 935-938;  id. at 941-942
(supplemental opinion of Fahy, J.).  /4/ Accord Garrett v. FCC, 513
F.2d 1056, 1062-1063 (D.C. Cir. 1975).  /5/

   As a result of the TV 9 and Garrett decisions, together with its
own studies, see, e.g., 1978 Policy Statement, 68 F.C.C. 2d at
980-981;  Minority Ownership Task Force, FCC, Report on Minority
Ownership in Broadcasting 1-3, 8-12, 30-31 (1978) (hereinafter Task
Force Report), the FCC implemented, among other measures, its
"distress sale" policy, which permits a limited category of licenses
to be transferred only to minority-controlled firms.  See 1978 Policy
Statement, 68 F.C.C.2d at 983;  see also Stereo Broadcasters, Inc. v.
FCC, 652 F.2d 1026, 1028-1029 (D.C. Cir. 1981).  The Task Force Report
recounted that "(d)espite the fact that minorities constitute
approximately 20 percent of the population, they control fewer than
one percent of the 8500 commercial radio and television() station(s)
currently operating in this country." Task Force Report at 1 (emphasis
in original).  The Task Force viewed that "(a)cute underrepresentation
of minorities among the owners of broadcast properties (as)
troublesome because it is the licensee who is ultimately responsible
for identifying and serving the needs and interests of his or her
audience," ibid., and found that "(u)nless minorities are encouraged
to enter the mainstream of th(is) commercial broadcasting business, a
substantial proportion of our citizenry will remain underserved and
the larger, nonminority audience will be deprived of the views of
minorities," ibid.

   The FCC credited these findings and, in calling for "broadcasters
to seek out minority purchasers" to reduce the lack of minority
participation in broadcast ownership, 1978 Policy Statement, 68
F.C.C.2d at 983, announced its commitment to the view that "(f)ull
minority participation in the ownership and management of broadcast
facilities results in a more diverse selection of programming * * *,
(and that) an increase in ownership by minorities will inevitably
enhance the diversity of control of a limited resource, the spectrum."
Id. at 981.  The Commission explained that because of

         the continuing underrepresentation of minorities in broadcast
      ownership, and because minority controlled stations are likely
      to serve the important function of providing a different insight
      to the general public about minority problems and minority views
      on matters of concern to the entire community and the nation,
      (the Commission concluded that) 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 which are at the
      heart of the Communications Act and the First Amendment.

Waters Broadcasting Corp., 91 F.C.C.2d at 1264, 1265.  /6/

   3. Congressional Oversight of the FCC's Minority Ownership Policies

   In 1982, Congress amended the Communications Act of 1934 to
authorize the FCC to award licenses under a random selection system,
and directed the FCC, in creating any such lottery procedure, to grant
"an additional significant preference * * * to any applicant
controlled by a member or members of a minority group." 47 U.S.C.
309(i)(3)(A);  see note 6, supra.  Congress was aware that minorities
"traditionally have been extremely under-represented in the ownership
of telecommunications facilities and media properties." H.R. Conf.
Rep. No. 765, 97th Cong., 2d Sess. 44 (1982).  Consequently, Congress
was of the view that

         (o)ne means of remedying the past economic disadvantage to
      minorities which has limited their entry into * * * the media of
      mass communications, while promoting the primary communications
      policy objective of achieving a greater diversification of the
      media * * *, is to provide that a significant preference be
      awarded to minority-controlled applicants in FCC licensing
      proceedings * * *.

Ibid.; see also H.R. Conf. Rep. No. 208, 97th Cong., 1st Sess. 897
(1981).

   In 1987, in response to the FCC's initiation of inquiry proceedings
to reconsider the appropriateness of its policies that seek to promote
minority ownership in broadcasting, see pp. 13-14, infra, Congress
enacted an appropriations provision that prohibited the Commission
from spending any appropriated funds "to repeal, to retroactively
apply changes in, or to begin or continue a reexamination of" those
policies.  Continuing Appropriations Act for the Fiscal Year 1988,
Pub. L. No. 100-202, 101 Stat. 1329-32.  The Senate Appropriations
Committee, the author of that prohibition, 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 * * * audiences.

S. Rep. No. 182, 100th Cong., 1st Sess. 76 (1987).  Congress has since
extended the prohibition through fiscal year 1989, see Departments of
Commerce, Justice, and State, the Judiciary and Related Agencies
Appropriations Act, 1989, Pub. L. No. 100-459, 102 Stat. 2216-2217,
and has recently renewed that extension for the current fiscal year,
1990.  See Departments of Commerce, Justice, and State, the Judiciary
and Related Agencies Appropriations Act, 1990, Pub. L. No. 101-162,
103 Stat. 1020-1021.  /7/

   B. Proceedings in the Present Case

   1. The FCC's Initial Licensing Proceedings

   a. The FCC's proceedings at issue here involve the broadcast
license for Channel 18 (WHCT-TV), Hartford, Connecticut, which was
held by Faith Center, Inc.  After the Commission had designated Faith
Center's license renewal application for a noncomparative hearing, /8/
Faith Center, in February 1981, petitioned the Commission for
permission to make a distress sale to the Television Corporation of
Hartford.  The FCC granted that request, Faith Center, Inc., 88
F.C.C.2d 788 (1981), but the proposed sale was not closed.  Alan
Shurberg, sole owner of Shurberg Broadcasting Company of Hartford,
Inc. (collectively "Shurberg"), among others, petitioned the FCC to
deny that application.  In September 1983, the Commission granted
Faith Center's request to pursue a second proposed distress sale to
Interstate Media Corporation.  Faith Center, Inc., 54 Rad. Reg.2d (P &
F) 1286 (1983).  See Pet. App. 6a-8a.  /9/

   Thereafter, Shurberg, in December 1983, tendered to the FCC an
application for a permit to build a television station in Hartford, an
application that would be mutually exclusive of Faith Center's pending
renewal appliaction for Channel 18.  The Commission rejected
Shurberg's filing, because the controlling regulations precluded it
from accepting applications that completed with designated-for-hearing
renewal applications until the resolution of the noncomparative
proceedings.  See 47 C.F.R. 73.3516(e).  Meanwhile, Faith Center and
Interstate Media were unable to close the proposed distress sale.  As
a result of the aborted distress sale to Interstate Media, Faith
Center's renewal application automatically reverted to
designated-for-hearing status.  Pet. App. 8a, 116a-117a.

   b. In April 1984, Shurberg requested the Commission to designate
his previously filed construction permit application for a comparative
hearing with Faith Center's renewal application.  In June, however,
Faith Center once again sought the Commission's approval to make a
distress sale.  Faith Center requested permission to sell to
petitioner Astroline Communications Company Limited Partnership, "a
financially qualified minority applicant (which is) experienced in
broadcast operations." J.A. 490.  Shurberg opposed the distress sale
on a number of grounds, including his contention that the Commission's
distress sale program violated his constitutional right to equal
protection.  Shurberg therefore urged the Commission to set his
application for a comparative hearing.  Pet. App. 8a-9a.

   c. 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).  /10/ The Commission rejected Shurberg's
constitutional challenge to the minority distress sale program as
"without merit." Pet. App. 122a.  In support of that program, the
Commission cited its findings of "an acute underpresentation of
minorities among the owners of broadcast stations and that views of
racial minorities were inadequately represented in the broadcast
media," ibid., together with the Commission's previous observations
"that increasing minority ownership of broadcast stations would result
in diversity of control of a limited resource, the broadcast spectrum,
and would result in a more diverse selection of programming for the
entire viewing and listening public." Id. at 122a-123a.

   The Commission also found support in 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.  And the
Commission recognized that Congress, in requiring that the Commission
incorporate "significant preferences for minority applicants * * *
into any random selection licensing scheme," has "reaffirmed the
importance of fostering minority ownership of broadcast stations."
Ibid.; see 47 U.S.C. 309(i).

   d. Shurberg then filed a petition for review of the Commission's
order in the District of Columbia Circuit.  Meanwhile, on January 23,
1985, Faith Center and petitioner closed the distress sale.
Petitioner brought 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;  J.A.
1064.

   2. Intervening Legal and Administrative Proceedings

   a. The disposition of Shurberg's petition for review was delayed
for several years because of events concerning related proceedings.
In August 1985, after briefing in Shurberg's case had been completed,
the court of appeals held that the FCC had exceeded its statutory
authority by adopting a female preference in comparative licensing
proceedings.  Steele v. FCC, 770 F.2d 1192 (D.C. Cir. 1985).  On
October 31, 1985, however, the court of appeals, sitting en banc,
granted a private party's petition for rehearing in the Steele case,
vacated the panel's opinion, and, on November 22, ordered the parties
to file supplemental briefs on the pertinent statutory and
constitutional issues.  In September 1986, the FCC filed a
supplemental brief in the Steele case, stating that "the Commission
believes that both (its) gender and racial preference schemes conflict
with equal protection standards under the Constitution." Brief for FCC
on Rehearing En Banc at 14, Steele v. FCC, supra.  In light of its
position, the FCC asked the court of appeals to remand the case to the
Commission for further proceedings to explore the underpinnings of its
policies.  See Appendix to Brief for FCC on Rehearing En Banc, Steele
v. FCC, supra.

   On October 9, 1986, the court of appeals granted the FCC's motion
for remand in the Steele case.  And in December 1986, the Commission
initiated a separate non-adjudicatory inquiry proceeding to consider
the validity of its female and minority ownership policies.  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) (MM Dkt. No. 86-484),
modified, 2 F.C.C. Rcd 2377 (1987).  The Commission explained that, in
light of recent developments in the law, it needed to reconsider both
the factual and legal bases for the ownership policies.  See 1 F.C.C.
Rcd at 1317-1318.

   b. As a result of the remand in the Steele case, together with the
related developments, the FCC asked the court of appeals to remand the
record in the instant case in order for the Commission to reexamine
its distress sale policy.  The court of appeals granted that motion in
June 1987, and remanded the case to the FCC.  Pet. App. 11a.  On
remand, the FCC held the case in abeyance pending the outcome of its
inquiry proceeding reexamining its minority ownership policies.

   c. On December 22, 1987, the President signed into law the
Continuing Appropriations Act for the Fiscal Year 1988, Pub. L. No.
100-202, 101 Stat. 1329, which, among other things, appropriated funds
for FCC salaries and expenses for that fiscal year.  That law 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 (FCC) with respect to
      comparative licensing, distress sales and tax certificates
      granted under 26 U.S.C. 1071, to expand minority and women
      ownership of broadcasting licenses, including those established
      in Statement of Policy on Minority Ownership of Broadcast
      Facilities, 68 F.C.C.2d 979 and 69 F.C.C.2d 1591, as amended * *
      *, 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.

101 Stat. 1329-31.

   The FCC complied with that legislation and on January 14, 1988,
closed its inquiry proceeding and reinstated its policy of awarding
gender and racial preferences in comparative licensing proceedings,
and of preferring minority-controlled applicants in distress sales.
See, e.g., Faith Center, Inc., 3 F.C.C. Rcd 868 (1988).

   d. Shurberg then asked the court of appeals for expedited
resolution of the pending case.  The court of appeals agreed to render
a decision "in the normal course of business." Pet. App. 13a.  /11/

   3. The Court of Appeals decision

   A divided court of appeals struck down the Commission's minority
distress sale program as unconstitutional.  Pet. App. 1a-112a.  In a
brief per curiam opinion, the panel majority held that this program
"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.).  Chief Judge Wald
filed a dissenting opinion.  See id. at 70a-112a.  /12/

   a. Judge Silberman identified the "constitutional issue (as)
whether or not the distress sale policy, by creating a preference for
minority purchasers, violates the equal protection component of the
Fifth Amendment." Pet. App. 18a.  After reviewing this Court's recent
pertinent decisions concerning government-sponsored minority
preferences, /13/ he extracted several guiding principles, including:
(1) such preferences "are constitutionally permissible under certain
limited circumstances, but they may not be based on the desirability
per se of achieving racial balance or proportional representation of
minorities in selected institutions," id. at 22a;  (2) the "nature of
the evidence required to establish the existence of prior
discrimination varies with the authority of the governmental body
imposing the remedial preference," id. at 22a-23a;  and (3)
"(a)ssuming the factual predicate for remedial action by any
governmental body has been established, a reviewing court must still
ensure that the use of race is narrowly tailored to the remedial
purpose." Id. at 23a.

   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 found 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.  Accordingly, he concluded
that the remedial justification does not support the Commission's
program.

   Turning 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 Pet. App. 36a-41a.  He noted, among other things, that the
Commission, in recently abandoning the "fairness doctrine," determined
"that there no longer is 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.  In his view, "(a)s 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.  Furthermore, he rejected the
contention that Congress had made sufficient findings that support a
nexus between program diversity and minority ownership, see id. at
45a-47a, and also concluded that the Commission's policy could not be
upheld under the framework outlined by Justice Powell in Regents of
the University of Cal. v. Bakke, 438 U.S. 265, 315-319 (1978).  See
Pet. App. 47a-49a.

   b. 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.  /14/ 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.  As a result,
the Commission's program impermissibly "deprive(s) all nonminorities
of their right to equal access to a broadcast license." Ibid.
Similarly, he found that "because the distress sale program has no
limits of any character it is not sufficiently tailored to the goal of
promoting programming diversity." Id. at 63a.  /15/ Accordingly, Judge
MacKinnon concluded that the program "unduly burdens innocent
nonminorities." Id. at 66a.

   c. Chief Judge Wald dissented, concluding overall 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.
After reviewing the development of that program, as well as Congress's
express endorsements of the Commission's efforts to diversify media
control through programs to encourage minority ownership and control,
Chief Judge Wald found that the distress sale program is "a
deliberately chosen congressional policy." Id at 79a.  And, in light
of the current case law, she concluded that the policy "is a
constitutional means of pursuing Congress' objective:  ensuring
greater diversity in programming." Ibid.  She accepted as both
reasonable and supported by congressional factfinding the connection
between minority ownership and diverse programming.  See id. at
92a-100a.  Finally, Chief Judge Wald disputed the conclusion that the
Commission's program impermissibly burdens innocent nonminorities,
finding that "the near-monopoly exercised by nonminorities over
broadcast media -- they control approximately 98% of all broadcast
licenses -- and 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.

   d. On June 16, 1989, a petition for rehearing, together with a
suggestion of rehearing en banc, were denied.  Pet. App. 143-154a;
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 157a-160a.

                               ARGUMENT

   This Court is well aware that government-sponsored racial
preference programs, like the Federal Communications Commission's
minority distress sale program, may involve important and sensitive
questions of public policy and constitutional law.  See, e.g., City of
Richmond v. J.A. Croson Co., 109 S. Ct. 706 (1989);  Wygant v. Jackson
Bd. of Educ., 476 U.S. 267 (1986);  Fullilove v. Klutznick, 448 U.S.
448 (1980);  Regents of the University of Cal. v. Bakke, 438 U.S. 265
(1978).  Several considerations, however, suggest that further review
of this particular case is not warranted at this time.  Accordingly,
we submit that review should be denied.

   First, petitioner's current precarious financial status makes this
case an unsuitable vehicle for addressing the broad legal issues
surrounding the validity of the Commission's distress sale program
that petitioner raises.  See Pet. 11-27.  /16/ Given its pending
bankruptcy proceeding, see note 11, supra, petitioner might well not
be able to hold the license for Channel 18, regardless of whether the
distress sale at issue were ultimately upheld.  Rather, an appointed
receiver or trustee in bankruptcy, acting on behalf of creditors,
might well step in, and under the Commission's settled practice, could
be permitted to sell or transfer "the bankrupt's license (if) the
transaction will not unduly interfere with the FCC mandate to insure
that broadcast licenses are used and transferred consistently with the
Communications Act." LaRose v. FCC, 494 F.2d 1145, 1148 (D.C. Cir.
1974);  see In re Applications of Channel 64 Joint Venture 3 F.C.C.
Rcd 900 (1988);  D.H. Overmyer Telecasting Co., 94 F.C.C.2s 117
(1983).  Accordingly, the outcome of the pending bankruptcy action
could well deprive this case of any significance with respect to
petitioner's holding the license.  /17/

   Second, the decision below is the first court of appeals decision
to apply this Court's analytical framework in City of Richmond v. J.A.
Croson Co., supra, to a government-sponsored program involving a
racial preference.  Cf. United States v. City of Chicago, 870 F.2d
1256, 1261 (7th Cir. 1989).  Thus, to the extent petitioner seeks this
Court's review of the court of appeals' treatment of that decision as
applied to a particular factual setting, see, e.g., Pet. 12, 15,
17-18, 23, that request may well be premature pending further
illumination in the courts of appeals.

   Third, petitioner points out (Pet. 11, 22-23) that the court of
appeals' decision may not be squared with either Winter Park
Communications, Inc. v. FCC, supra, decided by a different panel of
the court of appeals, see note 6, supra, or the District of Columbia
Circuit's earlier decision in West Michigan Broadcasting Co. v. FCC,
735 F.2d 601 (1984), cert. denied, 470 U.S. 1027 (1985).  These cases
pose no direct conflict, as each involved a distinct minority
ownership program.  /18/ Nevertheless, they do rely on conflicting
rationales and applications of this Court's recent decisions.  In
Winter Park and West Michigan, the court of appeals upheld the
constitutionality of the FCC's policy of awarding a qualitative
enhancement for minority ownership in comparative licensing
proceedings.  And in so holding, both the Winter Park and West
Michigan courts embraced analyses expressly rejected by the majority
below to strike down the FCC's minority distress sale program.  See
Winter Park, 873 F.2d at 352-355;  West Michigan, 735 F.2d at 609-611.

   That intra-circuit conflict does not call for further review by
this Court at this time.  The Court has long followed the prudential
practice of not stepping in to resolve such disputes.  E.g., Davis v.
United States, 417 U.S. 333, 340 (1974);  Wisniewski v. United States,
353 U.S. 901, 902 (1957).  And the current status of the District of
Columbia Circuit suggests that a departure from this Court's practice
is especially unwarranted in this case.  That circuit currently has
three judgeships vacant;  those vacancies are expected to be filled in
the foreseeable future.  Accordingly, once the court of appeals has
its allotted complement of judges, and if issues surrounding the FCC's
racial preference policies persist, the entire court of appeals will
be able to resolve any inconsistencies among panel decisions.

   Finally, as is apparent from the background of this case, see,
e.g., pp. 7-8, supra, both the FCC and the Congress have paid
particular attention to and have closely monitored developments in
this evolving area of law and public policy.  The current state of
affairs, which mandates the FCC's continued use of racial preference
policies (subject, of course, to judicial review), stems from
Congress's reenactment of the annual approprations provision.  See pp.
7-8 & note 7, supra.  Accordingly, as the law now stands, Congress
must reconsider the subject matter by the close of fiscal year 1990,
and in fact has recently held hearings to examine the status and
soundness of the FCC's minority ownership policies.  See Hearing on
Minority Ownership of Broadcast Stations Before the Subcomm. on
Communications of the Senate Comm. on Communications, Science and
Transportation, 101st Cong., 1st Sess. (Comm. Print Sept. 15, 1989)
(unpublished);  see also note 7, supra.  In these circumstances, where
Congress is revisiting this complex and sensitive area of the law,
intervention by this Court at this time is not necessary.

                              CONCLUSION

   The petition for a writ of certiorari should be denied.

   Respectfully submitted.

   JOHN G. ROBERTS, JR.

      Acting Solicitor General /19/

   ROBERT L. PETTIT

      General Counsel

   DANIEL M. ARMSTRONG

      Associate General Counsel

   C. GREY PASH, JR.

      Counsel Federal Communications Commission

   DECEMBER 1989

   /1/ The FCC has implemented a different rule with respect to an
applicant organized as a limited partnership:  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," that
partnership qualifies as one with "significant minority involvement."
Commission Policy Regarding the Advancement of Minority Ownership in
Broadcasting, 92 F.C.C.2d 849, 855 (1982).

   /2/ From fiscal years 1979 through 1987, the FCC has approved only
38 distress sales.  During that same period, the Commission approved a
total of approximately 9,000 sales of broadcast stations.  Thus,
distress sales have accounted for 0.4% of all broadcast station sales
during that nine-year period.  See FCC C.A. Pet. for Rehearing and
Suggestion for Rehearing En Banc 11-12;  see also Pet. 14.

   /3/ During the late 1960's, the FCC had addressed the problem of
racial discrimination in licensees' employment practices.  See
generally Nondiscrimination Employment Practices of Broadcast
Licensees, 18 F.C.C.2d 240 (1969).

   /4/ The court of appeals stated that

         when minority ownership is likely to increase diversity of
      content, especially of opinion and viewpoint, merit should be
      awarded.  The fact that other applicants propose to present the
      views of such minority groups in their programming, although
      relevant, does not offset the fact that it is upon ownership
      that public policy places primary reliance with respect to
      diversification of content, and that historically has proven to
      be significantly influential with respect to editorial comment
      and the presentation of views.

495 F.2d at 938 (footnotes omitted).

   /5/ The Garrett court stated that "(t)he entire thrust of TV 9 is
that black ownership and participation together are themselves likely
to bring about programming that is responsive to the needs of the
black citizenry, and that that 'reasonable expectation,' without
'advance demonstration,' gives them relevance." 513 F.2d at 1063
(footnotes omitted).

   /6/ These findings also undergird other FCC policies designed to
promote greater minority participation in broadcasting.  Since 1978,
the FCC has sought to increase minority participation in broadcasting
by awarding tax certificates, i.e., incentives, to station owners who
sell facilities to minority-controlled applicants.  See 26 U.S.C.
1071;  1978 Policy Statement, 68 F.C.C.2d at 982-983.  By statute,
Congress has also directed the FCC to use minority preferences in the
random assignment of certain low-power stations.  See 47 U.S.C.
309(i)(3)(A).

   Moreover, along with the distress sale program, the FCC implemented
a policy of awarding preferences for minority ownership in comparative
proceedings.  See WPIX, Inc., 68 F.C.C.2d 381, 411-412 (1978);  see
also Waters Broadcasting Corp., 91 F.C.C.2d 1260, 1264 & n.13 (1982),
aff'd sub nom. West Michigan Broadcasting Co. v. FCC, 735 F.2d 601
(D.C. Cir. 1984), cert. denied, 470 U.S. 1027 (1985);  1978 Policy
Statement, 68 F.C.C.2d at 981-983.  The District of Columbia Circuit
recently upheld the constitutionality of the FCC's policy of awarding
a qualitative enhancement for minority ownership in comparative
licensing proceedings.  Winter Park Communications, Inc. v. FCC, 873
F.2d 347 (D.C. Cir. 1989), petition for cert. pending sub nom. Metro
Broadcasting, Inc. v. FCC, No. 89-453.  In a separate submission filed
this date, the FCC has opposed the petition for a writ of certiorari
filed by the unsuccessful license applicant in that case.  We have
provided a copy of that brief to counsel for petitioner in this case.

   /7/ On November 21, 1989, the President signed the appropriations
provision into law.  See also H.R. Conf. Rep. No. 299, 101st Cong.,
1st Sess. 64 (1989);  135 Cong. Rec. H7644 (daily ed. Oct. 26, 1989);
135 Cong. Rec. S12,265 (daily ed. Sept. 29, 1989).

   In recent years, Congress has continued to oversee the FCC's
minority preference programs.  See, e.g., Hearings on H.R. 2763 Before
a Subcomm. of the Senate Comm. on Appropriations, 100th Cong., 1st
Sess. Pt. 1, at 17-19, 75-77 (1987);  Minority-Owned Broadcast
Stations -- Hearings 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 -- Hearings 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).
Following the decision in this case, Congress again held hearings to
examine the current status of those programs.  The Subcommittee on
Communications of the Senate Committee on Commerce, Science and
Transportation, held hearings on September 15, 1989, to examine
further the issue of minority ownership of broadcast stations.  See
Hearing on Minority Ownership of Broadcast Stations Before the
Subcomm. on Communications of the Senate Comm. on Communications,
Science and Transportation, 101st Cong., 1st Sess. (Comm. Print Sept.
15, 1989) (unpublished).

   /8/ In a related proceeding, the Commission had dismissed Faith
Center's license renewal application for its television station in San
Bernardino, California, because Faith Center had refused to cooperate
in the proceeding.  See Faith Center, Inc., 82 F.C.C.2d 1 (1980),
reconsid. denied, FCC No. 81-235 (May 12, 1981), aff'd mem. sub nom.
Faith Center, Inc. v. FCC, 679 F.2d 261 (D.C. Cir. 1982), cert.
denied, 459 U.S. 1203 (1983).

   /9/ Shurberg sought judicial review of the FCC's order that
authorized Faith Center to pursue a second distress sale.  The court
of appeals dismissed that appeal on ripeness grounds.  Shurberg v.
FCC, No. 83-2098 (D.C. Cir. May 24, 1984).

   /10/ The FCC rejected Shurberg's argument that he was entitled to a
comparative hearing against Faith Center's renewal application.  Pet.
App. 117a-122a.  The Commission acknowledged as a "close question" the
issue whether "the public interest in permitting competing
applications to be filed, as articulated in (New South Media Corp. v.
FCC, 685 F.2d 708 (D.C. Cir. 1982)), outweighs the goals of (its)
minority ownership policies in this case." Pet. App. 121a.  The
Commission determined, however, that its

         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 application
      to assign the license to (petitioner).

Ibid.

   /11/ In October 1988, while the case was pending before the court
of appeals, several of petitioner Astroline's creditors filed an
involuntary petition in bankruptcy against the firm under 11 U.S.C.
701 et seq.  In re:  Astroline Communications Co., No. 2-88-01124
(Bankr. D. Conn. Oct. 31, 1988).  The creditors claimed that Astroline
owed them more than $11.6 million, that Astroline was seriously
delinquent in making payments on those debts, that Astroline had
admitted that it was generally not paying its debts on time, and that,
with limited exceptions, Astroline had suspended all payments to its
program suppliers.  See Petition 2, In re:  Astroline Communications
Co., No. 2-88-01124 (Bankr. D. Conn. Oct. 31, 1988).  In December
1988, Astroline elected, under 11 U.S.C. 706, to convert the
proceeding into a voluntary reorganization under Chapter 11 of the
Bankruptcy Code.  See Order, In re:  Astroline Communications Co., No.
2-88-01124 (Bankr. D. Conn. Dec. 1, 1988).

   Astroline's bankruptcy proceeding remains pending;  Astroline has
continued to operate Channel 18 as a "debtor in possession." Astroline
has also informed the Commission that its financial condition and
future operation of the station are uncertain.  See Arnold L. Chase, 4
F.C.C. Rcd 5085 (1989).

   /12/ As a threshhold 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 expressly 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.

   /13/ City of Richmond v. J.A. Croson Co., 109 S. Ct. 706 (1989);
Wygant v. Jackson Bd. of Educ., 476 U.S. 267 (1986);  Fullilove v.
Klutznick, 448 U.S. 448 (1980);  Regents of the University of Cal. v.
Bakke, 438 U.S. 265 (1978).

   /14/ For that reason, Judge MacKinnon chose not to reach the
question "whether either promoting programming diversity or remedying
societal discrimination are a sufficiently compelling governmental
interest to support the use of government sponsored minority
preference programs." Pet. App. 59a-60a n.11.

   /15/ Disagreeing with Judge Silberman, Judge MacKinnon found that
Congress had sufficiently determined that there is a nexus between
minority ownership and programming diversity.  See Pet. App. 64a-66a.
He agreed, however, with Judge Silberman's further conclusion that
such a congressional determination does not insulate the Commission's
distress sale program from the applicable standard of judicial review
-- "strict scrutiny." Id. at 66a.

   /16/ Moreover, the distress sale program, since its inception in
1978, has not played a major role in connection with the transfer and
sale of broadcast licenses.  See note 2, supra.

   /17/ In addition, as matters now stand, petitioner will not
automatically be prevented from holding the broadcast license.  To the
contrary, under the court of appeals' mandate, the Commission must
reopen the administrative proceedings to consider the interests of all
relevant parties, including petitioner, in the license for Channel 18.

   /18/ Under the FCC's minority distress sale policy, the policy at
issue in this case, the Commission permits a limited category of
licenses to be transferred only to minority-controlled firms.  By
contrast, under the FCC's policy of awarding a qualitative enhancement
for minority ownership in comparative licensing proceedings, the
policy at issue in Winter Park and West Michigan, the Commission takes
minority status into account as one factor in a multi-factor
comparative process.

   /19/ The Solicitor General is disqualified in this case.