RESPONDENT: Federal Communications Commission
LOCATION: Doby’s Motel Court
DOCKET NO.: 89-453
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
Daniel M. Armstrong, III - Argued the cause for the federal respondent
Gregory H. Guillot - Argued the cause for the petitioner
Margaret Polivy - on behalf of the Private Respondent
Facts of the case
This case challenged the constitutionality of two minority preference policies of the Federal Communications Commission. Under the first policy challenged by Metro Broadcasting, Inc., minority applicants for broadcast licenses were given preference if all other relevant factors were roughly equal. The second policy, known as the "distress sale," was challenged by Shurberg Broadcasting of Hartford Inc. This policy allowed broadcasters in danger of losing their licenses to sell their stations to minority buyers before the FCC formally ruled on the viability of the troubled stations. This case was decided together with Astroline Communications Co. v. Shurberg Broadcasting, in which Faith Center Inc. made a "distress sale" of its television license to a minority outfit owned by Astroline. Shurberg, a non-minority applicant for a similar license, challenged the FCC's approval of Faith Center's sale to Astroline.
Did the FCC's minority preference policies violate the equal protection component of the Fifth Amendment?
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 first this morning in Number 89-453, Metro Broadcasting, Inc. v. Federal Communications Commission.
Gregory H. Guillot:
This case involves the FCC's policies of awarding substantial preferences in comparative licensing proceedings to certain minority and female applicants for new television and radio broadcast stations throughout the United States.
The Petitioner Metro in 1982 filed its application for a construction permit for a new UHF television station at Channel 60 in Orlando, Florida but ultimately lost in the comparative contest due to Rainbow Broadcasting Company, the Respondent intervenors', enhancement credits for minority and female ownership composition.
This outcome, along with the preferential treatment policies resulting in it, was upheld by the U.S. Court of Appeals for the District of Columbia circuit by a 2-1 decision.
The lower court's holding had followed an initial remand in the case and the remand of the record in the case as part of an active investigation into the factual statutory and constitutional underpinnings of the Commission's preference policies.
During the remand, the Commission had held all cases in abeyance, including the present one, pending its determination regarding whether the policies were ordinarily tailored and otherwise constitutional.
But in 1987 the Congress passed an appropriations act defunding the Commission's inquiry and specifically directing that this case be decided in accordance with the minority and female preferences that existed prior to the remand.
The issues presented in the case are twofold: One, whether the Commission's policies of awarding the preferences, which were created absent any findings of past discrimination and for the sole purpose of promoting program diversity, violate the equal protection component of the due process clause of the Fifth Amendment.
And secondly, whether the congressional entrenchment of the communications... the Federal Communications Commission's policies and its other associated actions in the appropriations act violated the equal protection clause of the Fifth Amendment or exceeded its authority, whatever authority it has under the Fourteenth Amendment.
This case is unlike other so-called affirmative action cases which this Court has heard in the past.
Unlike the model program approved in Fullilove or the academic admissions system hypothetically approved by the Court in Bakke, in this case the preference programs of the FCC have resulted in actual discrimination against Metro Broadcasting which, importantly, is a corporation comprised of both a minority member and nonminority members.
Unlike the program under review in Fullilove, the programs reviewed in Wygant or Croson, the FCC's preference policies are not founded on the remedying of past discrimination but upon the pursuit of program diversity, an amorphous concept which, as we shall examine, has intense First Amendment implications as well.
Unlike the other programs reviewed by this Court in the past, three separate governmental entities, not just one, have had a hand in establishing or perpetuating the Commission's policies: the courts, the FCC and the Congress.
But regardless of these distinctions between this case and past cases, one thing is for certain; and that is, that the Commission's policies impose race, gender and ethnic-based classifications and that those classifications, we feel, are presumptively invalid but, at minimum, they require close examination.
Metro recognizes that there--
Excuse me, Mr.--
Gregory H. Guillot:
--is diversity of perspective--
--Excuse me, Mr. Guillot.
Gregory H. Guillot:
--Yes, Justice Scalia.
Is... is... is it clear that the gender-based issue is necessarily before us here?
Gregory H. Guillot:
It is absolutely clear, in our opinion, that the gender-based issue is... is before the Court for several reasons.
First of all, the lower court did not consider gender.
It only considered the minority preferences because of dicta contained in the Commission's denial of Metro's application for review that said that the minority... it was not clear that the gender preference, being only a 5 percent one, was dispositive in the case.
However, on remand, in an actual order of the Commission, which we feel is what this Court should review, the Commission held that the minority and female preferences together were dispositive, and that was the holding of the review board as well.
This Court is to review judgments, we feel, as Justice Stevens pointed out in Fullilove at page 411, note 6, and Black v. Cutler Labs, and not just statements such as the one accompanying the Commission's denial of Metro's application for review.
But there is... there is a more important reason, Your Honor, and that is that in this case, as we shall examine, the minority and female preferences are pitted together in a comparative licensing proceeding.
They are not... neither one of them... are considered separately, and you really can't examine one without examining the other.
And you can't really examine the tailoring of the program without examining how the two... the two preferences fit together, both the gender and the minority and ethnic preferences.
You wouldn't win if we just found the racial preferences invalid?