RESPONDENT: Federal Communications Commission
LOCATION: State Highway 55, LaGrange, NY
DOCKET NO.: 89-700
DECIDED BY: Rehnquist Court (1988-1990)
LOWER COURT: United States Court of Appeals for the District of Columbia Circuit
CITATION: 497 US 547 (1990)
ARGUED: Mar 28, 1990
DECIDED: Jun 27, 1990
Harry F. Cole - Argued the cause for the respondents
Mr. J. Roger Wollenberg -
Facts of the case
In an effort to comply by its duty to promote programming diversity, under the Communications Act of 1934, the Federal Communications Commission (FCC) adopted two minority preference policies. The first policy awarded preferences to minority ownership bids for licenses for new radio or television broadcasting stations. The second policy allowed radio or television broadcasters with questionable license qualifications, to avoid an FCC investigation of their actions by making a "distress sale" of their licenses to a legitimate minority outfit. Upon FCC approval, Faith Center Inc. "distress sold" its television license to Astroline's minority-owned outfit. Shurberg, a nonminority applicant for a similar license, sought appellate review of Astroline's award. The appellate court agreed, and invalidated the distress sale policy as unconstitutional. Astroline appealed and the Supreme Court granted certiorari.
Does the FCC's minority preference policy, giving preference to minority ownership bids for new radio or television broadcasting licenses and permitting "distress sales" to minority owned enterprises only, violate a nonminority bidder's' Fifth Amendment equal protection rights?
Media for Metro Broadcasting, Inc. v. Federal Communications Commission
Audio Transcription for Oral Argument - March 28, 1990 in Metro Broadcasting, Inc. v. Federal Communications Commission
William H. Rehnquist:
We'll hear argument next in Number 89-700, Astroline Communications Company v. Shurberg Broadcasting.
Mr. Wollenberg, you may proceed whenever you're ready.
Mr. J. Roger Wollenberg:
Mr. Chief Justice, and may it please the Court:
I would like to start... in light of the discussion in the previous case, before turning to the specifics of the Astroline case, I would like to start with a little more discussion of the nature of the Communications Act.
The Communications Act is unique in our governmental system.
It was essentially a structure invented by Herbert Hoover a long time ago, and it attempts to handle a dilemma of major proportions, which is the dilemma of the necessity of a licensing scheme for broadcast frequencies to avoid a total interference and total chaos, a licensing scheme which, since it goes over the whole country, must be federally applied, and the fact that the resulting broadcast activities have enormous First Amendment implications because the broadcasting industry is very, very significant agency for informing the American people.
And this has resulted in compromises, if you like, in treatment over the years that is different from other areas.
It is different from industries not so effective.
It is different from the newspaper industry, which doesn't have a licensing problem.
So way back in NBC v. United States, this Court said that the FCC is not a mere traffic cop.
It's concerned with the nature of the traffic, as well as its distribution.
This Court in Red Lion... excuse me... this Court in Red Lion upheld a very significant action by the Commission in requiring what was called the Fairness Doctrine, which meant in substance that if one side of a controversial issue was discussed, that it would be necessary to provide discussion of other viewpoints.
In other words, a diversity of viewpoints was imposed by the Commission and upheld by this Court in Red Lion.
Of course, that can be called content control.
It is not saying what position should be taken.
It is not a very precise or detailed form of content control, but it's a form of content control.
It was mentioned earlier today, the Listeners Guild case, and with deference, I think it was not accurately described.
The suggestion was that in the Listeners Guild case that this Court said that it is wonderful... not wonderful, it is appropriate for the Commission to leave entirely to the marketplace what goes out over the air.
A closer examination of the Listeners Guild case will reveal that the subject of it was entertainment programming and that the Court, in upholding the Commission's decision to leave entertainment to the marketplace, was not dealing with the nonentertainment aspects of it.
Now, it's perfectly true that the Commission over the years and to some degree the Court over the years have gone up and down on the question of the degree of intrusiveness which is appropriate and permissible on the part of the Commission in order to carry out what one of the arguments this morning referred to as the trustee notion of broadcasting.
It was suggested from the bench that what we are all in for is to make the maximum money and therefore the only test that will be applied by a broadcaster, regardless of origins, is to make the most money.
I would hope that there are other factors which enter into it, but be that as it may, I suggest that with the licensing necessity, and with the Communications Act and its structure having been upheld over the years, that the determination of that question is a question for Congress.
I think there has been unfortunately, today, because Congress isn't here except through an extremely impressive and comprehensive brief by the United States Senate... not a senator, but by the United States Senate... on the subject.
Because the Congress isn't here and the representative of the FCC is here, there is a tendency of the Court to treat this as an FCC matter.
It really, as the brief for the Senate shows and as Mr. Armstrong's argument made clear, it is not an FCC matter.
The FCC received large numbers of signals over the years that it should pay more attention to the composition of ownership of broadcast stations, and when the FCC adopted the policies that have been discussed this morning and then at a later time a differently composed Commission looked as though it was going to change those policies, Congress stepped in and very explicitly told it not to.
Sandra Day O'Connor:
Mr. Wollenberg, do you think Congress acted under its Fourteenth Amendment, Section 5 powers in this case?
Mr. J. Roger Wollenberg:
--Justice O'Connor, I find it impossible to comprehend or accept the notion that Congress' powers are somehow greater under Section 5 when dealing with Federal areas.