Diversity of viewpoint has long been a primary goal of U.S. communications policy. Congress and the Federal Communications Commission (FCC) have a history of supporting programs that foster diversity of broadcast station ownership, in general, and minority and female ownership, in particular, as a means to achieve that goal. The courts have reinforced the notion that minority ownership is a valid concern that should be addressed by the FCC when constructing its media ownership rules, but also have set restrictions on how programs can be structured to foster that goal. The FCC is under judicial mandate to consider how its ownership rules will affect minority ownership of broadcast stations. On May 5, 2009, the FCC issued a Notice of Proposed Rulemaking (NPRM) seeking comment on methods to improve the agency's data regarding minority and female ownership of broadcast properties. The new data may be used to aid the FCC in deciding whether and to what extent programs to increase minority and female ownership should be implemented. Also, two bills were introduced in the 110 th Congress that would have revived a tax incentive to aid certain businesses seeking to acquire telecommunications, including broadcast, properties. Insofar as these proposals define minorities based on race, they will be subject to strict review by the courts. Structuring the programs narrowly may be necessary in order to survive a judicial challenge. From 1978 to 1995, the FCC operated a tax certificate program under §1071 of the Internal Revenue Code (IRC) that was designed, among other goals, to aid minority-owned economically disadvantaged businesses in acquiring broadcast properties in furtherance of the FCC's congressional mandates relating to ownership and control of broadcasting stations. To qualify for a tax certificate, the purchasing business had to be controlled by a minority. At the time, the FCC defined minorities as those of "Black, Hispanic Surnamed, American Eskimo, Aleut, American Indian, or Asiatic American extraction." If the certificate was granted the selling corporation was allowed to defer paying taxes on any capital gain from the sale. In 1995, certain aspects of the program were questioned by Congress when Viacom structured a deal to sell a large portion of its broadcast property to an entity that qualified as a minority-owned business. The deal was conditioned upon receiving the tax certificate under the FCC's program. Some Members of Congress took notice when they learned that the deal could allow Viacom to defer an estimated $440 million to $640 million in taxes. Congress expressed concern that the tax certificate program provided little protection from abuse. There was no limit to the amount of gain on a sale that could be deferred. Furthermore, minority ownership was only required to continue for one year from the date of sale. Members were also concerned that the short holding period requirement rendered the tax incentive ineffective, because properties could quickly transfer from minority ownership without penalty. Amidst these concerns, Congress repealed IRC §1071. The FCC also currently has in place a "distress sale" policy that allows broadcasters whose licenses have been designated for a revocation hearing to sell those licenses to qualified minority-owned buyers before the hearing. Use of the "distress sale" program and other FCC policies that encourage minority ownership of broadcast stations has declined since the Supreme Court announced its opinion in Adarand Construction v. Peña amidst concerns that the programs, in their current form, could not withstand a legal challenge. On August 1, 2007, the FCC issued a Second Further Notice of Proposed Rulemaking (SFNPR) in its review of the Commission's Broadcast Ownership Rules. The SFNPR contained 14 proposals for the amendment of the FCC's Broadcast Ownership Rules, 10 of which would require a definition for Socially Disadvantaged Businesses (SDBs). The SFNPR invited comment for the definition of SDBs, including how such a definition would comply with constitutional standards. The FCC adopted new rules to promote diversification of broadcast ownership on December 18, 2007. The order was published on March 5, 2008. The new rules define eligible entities as "any entity that would qualify as a small business consistent with Small Business Administration standards for its industry grouping, based on revenue." This definition does not appear to take the race or gender of the owner of the eligible entity into account; the FCC is seeking further comment on whether the definition of "eligible entity" may be expanded. In May of 2009, the FCC issued a Fourth Further Notice of Proposed Rulemaking in this proceeding. The agency is seeking to improve its data on minority and female ownership of broadcast properties by modifying and expanding reporting requirements for broadcasters as well as improving the agency's database. Once the data have been gathered, the FCC may attempt to use the new information to develop programs to encourage broadcast station ownership by minorities and women. However, to the extent that those programs are designed to benefit individuals based on their race, they will likely be subject to the standard of review described below. In 1995, the Supreme Court decided Adarand Construction v. Peña , which held that all race-based classifications by the federal government must withstand strict scrutiny, as discussed in the following section. New tax incentives or other broadcast ownership policies that give preference to racial minorities, therefore, would need to withstand close judicial analysis. In Adarand , the Supreme Court declared that any racial classification by government at any level (state, local, or federal) must comply with strict scrutiny. Strict scrutiny is the most exacting review a court will undertake and requires the government to prove the measure is necessary to achieve a compelling government interest and that the program is narrowly tailored to achieve that interest. The Court reasoned that this requirement was in line with the intentions of the Fifth and Fourteenth Amendments, which protect individuals and not groups from discrimination based on race. Government action that distinguishes between individuals based on membership in a racial or ethnic group is inherently suspect and warrants the most exacting review. Law or regulation that would attempt to define SDBs using the race or ethnicity of the business owners as a factor in determining eligibility would have to meet strict scrutiny, as mandated by the Court in Adarand . The first question a reviewing court would ask is whether the interest the legislation or regulation seeks to achieve is "compelling." In the context of tax provisions and FCC programs that encourage SDBs to own broadcast properties, the government interest that has been articulated is to promote broadcast viewpoint diversity. The theory underlying this interest is that diverse ownership creates diversity of voices and viewpoints in the marketplace of ideas, a concept essential to our democracy and embodied within the First Amendment. The Supreme Court has acknowledged that diversity of viewpoint in public discussion benefits the populace and that the government has an interest in encouraging such diversity over the broadcast airwaves; however, whether that interest is sufficiently compelling to survive strict scrutiny remains a matter of debate. Prior to Adarand , the Supreme Court decided Metro Broadcasting v. FCC , and upheld the FCC's minority broadcast ownership policies after applying intermediate scrutiny. Intermediate scrutiny is a less exacting standard than strict scrutiny and requires the government to prove only that the relevant classification is substantially related to an important government interest. The Court, agreeing with Congress and with the FCC, held that enhancing broadcast diversity "is, at the very least, an important government interest." The Metro Broadcasting majority grounded their "important interest" analysis in the scarcity of electromagnetic spectrum and the government's duty to distribute that spectrum to encourage the availability of the widest array of information sources and viewpoints. The Court noted that "it is axiomatic that broadcasting may be regulated in light of the rights of the viewing and listening audience, and that the 'widest possible dissemination of information from diverse and antagonistic sources is essential to the welfare of the public.'" According to the Court, it is the right of the public to receive a diverse array of viewpoints and programming over the publicly owned broadcast airwaves, and it is the duty of Congress and the FCC to safeguard that right. Against this backdrop, the Metro Broadcasting majority concluded that the diversity of viewpoints on the broadcast airwaves serves important First Amendment principles and that this was sufficient basis for the minority ownership policies. Though Metro Broadcasting can provide some guidance as to the arguments that would be advanced in favor of finding that broadcast viewpoint diversity is a compelling government interest, because the Court applied a lower standard of scrutiny to what it termed a "benign racial classification," deeper analysis is required to determine if the interest is sufficiently compelling to withstand strict scrutiny. The Court made clear in Adarand that strict scrutiny is not "strict in theory, but fatal in fact." Justice O'Connor noted, "[t]he unhappy persistence of both the practices and lingering effects of racial discrimination against minorities in this country is an unfortunate reality, and the government is not disqualified from acting in response to it." This language suggested to some that in order to survive strict scrutiny racial classifications would be permissible only to remedy the effects of past discrimination. Such an interpretation probably would have ruled out the legitimacy of all other justifications for classification of individuals based on their race. The dissent in Metro Broadcasting , in fact, would have applied strict scrutiny to the ownership rules at issue in that case. The dissenters would have determined that broadcast ownership diversity was not a compelling interest and noted that only one compelling interest supporting a race-based classification had ever been recognized—to remedy past discrimination. In light of recent decisions, however, it is possible that diversity of broadcast viewpoint could be classified as a compelling interest. In Grutter v. Bollinger , the Court made clear that remedial classifications are not the only racial classifications that will survive strict scrutiny. In Grutter , the Court held that diversity within a student body is a compelling interest sufficient to withstand strict scrutiny. The Court relied heavily upon the reasoning of Justice Powell's opinion in Regents of University of California v. Bakke for its determination that student body diversity is a compelling government interest. Underpinning Powell's opinion in Bakke were strongly rooted First Amendment principles and the educational need for diverse viewpoints to enhance the learning experience.